“Let’s Get It On”… in front of a jury!

A few months after successfully defending an infringement claim in respect of hit song “Shape of You”, Ed Sheeran is facing yet another copyright battle. A company with a stake in the estate of Marvin Gaye claims that Sheeran’s “Thinking Out Loud” infringes copyright in Gaye’s well-known classic ‘Let’s Get it On‘.  Sheeran’s legal team had sought to have the claim dismissed on the basis that the alleged similarities between the songs (chord progression and harmonic rhythm) are too commonplace to attract copyright protection.  A US judge has ruled that the claim should progress to trial before a jury.

Sheeran has spoken publicly about his concern that spurious copyright claims are having a stifling effect on creativity. He has pointed out that there are only 12 notes and with millions of new pop songs being released each year there is bound to be some commonality. Indeed, many have embarked on the mission of writing a hit song using the ‘magic’ 4 chord progression common to a vast array of pop hits over the decades.

The Claimants are seeking discovery of information relating to tickets sales and revenues derived from Sheeran’s live concert performances. This is being resisted on the basis that this information is not relevant to the alleged infringement. It will be interesting (to Mills Selig IP team at least!) to see how the quantification of the claim plays out. Traditionally, the focus would have been on profits made from sales of the allegedly infringing single. It is understandable (though perhaps conceptually trickier) for the focus to shift to what is nowadays often a much more lucrative revenue stream.

The Mills Selig IP team advises both rights holders and those seeking permission to use material which is subject to copyright protection. 

Editorial prepared by Kirsten Magee, Partner, Litigation @ Mills Selig

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