Ed Sheeran fights appeal in ‘Thinking Out Loud’ copyright case

ED SHEERAN’s hit song “Thinking Out Loud” was once again on the docket in a New York courtroom on Wednesday, as a US appeals court was asked to revive a copyright lawsuit claiming Mr. Sheeran illegally borrowed from Marvin Gaye’s classic “Let’s Get It On.”

A 2nd US Circuit Court of Appeals panel questioned lawyers for Mr. Sheeran and plaintiff Structured Asset Sales over whether elements of Gaye’s song were copyrightable and how broadly a Manhattan federal court should have interpreted the copyright’s scope.

Mr. Sheeran previously defeated a separate copyright lawsuit over “Thinking Out Loud” brought by the heirs of “Let’s Get It On” co-writer Ed Townsend. Structured Asset Sales is owned by investment banker and “Bowie Bonds” creator David Pullman, which owns another part of Townsend’s interest in “Let’s Get It On.”

SAS sued Mr. Sheeran, his label Warner Music Group, and his music publisher Sony Music Publishing in 2018 after Townsend’s heirs filed their lawsuit. US District Judge Louis Stanton dismissed SAS’ case last year following a jury verdict for the singer-songwriter in the Townsend case.

Mr. Stanton determined that the combination of chord progression and “harmonic rhythm” in Gaye’s song was a “basic musical building block” that was too common to merit copyright protection. The 2nd Circuit panel on Wednesday appeared to agree with Mr. Stanton’s decision, but pondered how to gauge when a “selection and arrangement” of musical elements is copyrightable.

“So two elements isn’t enough,” US Circuit Judge Michael Park said to Sheeran’s attorney Donald Zakarin of Pryor Cashman. “How many do you need?”

Senior Circuit Judge Guido Calabresi said he could imagine a musician creating one element that is “so odd that you’d say this is genuinely original,” and he questioned the “numerosity” requirement for such copyrights mentioned in Mr. Stanton’s decision.

The court also considered SAS’ argument that Mr. Stanton improperly limited his analysis to the “deposit copy” of “Let’s Get It On” sheet music filed with the US Copyright Office, which lacks elements from the song that Sheeran allegedly copied.

SAS has filed another lawsuit against Sheeran based on its rights to Gaye’s recording. That case is currently on hold. — Reuters