Last April, after a London judge ruled that Ed Sheeran’s chart-topping 2017 hit “Shape of You” didn’t infringe the copyright of an earlier song, the pop superstar sounded more tired than celebratory.

The ruling had come after a two-week trial in which Sheeran took the stand to defend himself, briefly even singing in court to show that different songs frequently contain similar-sounding materials.

Though the judge had cleared his name, Sheeran took the occasion to lament that such cases were “way too common now” and were “really damaging to the songwriting industry.”

“There’s only so many notes and very few chords used in pop music. Coincidence is bound to happen if 60,000 songs are being released every day on Spotify,” Sheeran said at the time.

“I just want to say: I’m not an entity, I’m not a corporation, I’m a human being and a father and a husband and a son. Lawsuits are not a pleasant experience and I hope that this ruling means in the future baseless claims like this can be avoided.”

But now, just over a year later, Sheeran is headed right back into the fire.

Lawyers for the pop star will head to a Manhattan federal courthouse Monday to defend him against allegations that he lifted key elements of another smash hit, his 2014 tune “Thinking Out Loud,” from Marvin Gaye’s iconic “Let’s Get It On.”

The two songs at issue in the case do sound similar, as even Sheeran has seemingly acknowledged: The star was captured on video at a 2014 concert toggling back and forth between them, drawing huge applause from the audience. That clip might be played for jurors in the courtroom next week.

His accusers say the songs sound alike because Sheeran “knowingly and intentionally infringed” the earlier tune, stealing the “heart” from one of the most “instantly recognizable songs in R&B history.”

But Sheeran says it’s simply because the two tracks share commonplace musical building blocks – elements that are free for all to use and cannot be “monopolized” under copyright law.

Need to get caught up before things kick off Monday? Here’s everything you need to know about Ed Sheeran’s big copyright trial.

“Striking Similarities”

Released in September 2014, “Thinking Out Loud” was a commercial and critical success for Sheeran, reaching No. 2 on the Hot 100 before winning song of the year and best pop solo performance at the 58th Grammy Awards.

But listeners quickly noted similarities to “Let’s Get It On.” YouTube mashups and social media comments claimed there was serious overlap, and a 2015 article in Spin said that the song was an “incredibly obvious successor” to Gaye’s famed slow jam.

It didn’t take long before those comments turned into legal accusations.

In August 2016, Sheeran was hit with a copyright infringement lawsuit by Kathryn Townsend Griffin and other heirs of Ed Townsend, Gaye’s longtime producer who co-wrote “Let’s Get It On.”

They said he had intentionally copied the earlier song to create his own, violating federal copyright law.

“The defendants copied the heart of ‘Let’s’ and repeated it continuously throughout ‘Thinking,’” attorneys for the Townsend heirs wrote in their complaint. “The melodic, harmonic, and rhythmic compositions in ‘Thinking’ are not the product of independent creation.”

(Gaye’s actual heirs, who infamously won a jury verdict that Robin Thicke and Pharrell’s megahit “Blurred Lines” infringed the singer’s “Got To Give It Up,” are not involved in the case.)

“A Common Chord Progression”

Faced with those allegations, Sheeran’s lawyers soon asked the judge to toss the case out.

They argued that the only real similarity between “Thinking” and “Let’s Get It On” was a simple chord progression — I-iii-IV-V — that they said was so unremarkable that it could not form the basis for an infringement lawsuit.

Sheeran’s lawyers cited an expert report they had commissioned from Lawrence Ferrara, a well-known musicologist at New York University, who pointed to 13 other songs featuring that same progression that came before “Let’s Get It On,” including tunes by The Beach Boys and Buddy Holly.

“It is such a basic chord progression that it is taught in elementary guitar method books, one of which ironically opines that [“Let’s Get It On”] did not infringe earlier songs using the same progression since it is so ‘common’,” Sheeran’s attorneys wrote.

“According a monopoly over the use of a common chord progression to any author would undermine the central aim of copyright law … and unduly chill future expression.”

But attorneys for Townsend’s heirs sharply disagreed, citing their own expert report to the contrary and arguing that the case must proceed to a trial. And in 2019, the federal judge overseeing the case, Judge Louis L. Stanton, agreed with them.

https://www.myjoyonline.com/ed-sheeran-awarded-1-1m-in-shape-of-you-copyright-lawsuit/

“A jury might side with either view,” the judge wrote at the time. “The question whether [“Thinking Out Loud”] infringes on [“Let’s Get It On”] should be determined by trial rather than summarily.”

Court Hearing?

Before the case got to trial, the parties heavily sparred over a seemingly technical issue, but one with huge stakes for the case: Whether the judge and jury should be able to listen to Gaye’s famed recorded version of “Let’s Get It On” when deciding the case.

It seems like they should, right? But it’s not that simple.

That’s because the Townsend heirs don’t actually own a copyright to the sound recording created by Gaye during a March 22, 1973 studio session – the version you’ve heard countless times.

Instead, they only control what’s known as a “lead sheet” or “deposit copy,” a bare-bones written version of the song that includes core notation but lacks many more detailed musical choices made in the studio.

It’s an issue that came up in many copyright lawsuits over old songs, including the “Blurred Lines” case and the high-profile battle over Led Zeppelin‘s “Stairway To Heaven.”

But it was particularly important to the “Thinking” case, because Sheeran’s lawyers says that two of the key elements that he allegedly infringed – the drum pattern and the bass-guitar line – don’t appear in the deposit copy.

In arguing the issue, the Townsend heirs said that those extra recorded elements are “implied” in the written music and that the recorded version was the true embodiment of the song; Sheeran’s attorneys argued back that the case must be strictly limited to the deposit copy, or risk unfairly expanding the rights at issue.

In March 2020, Judge Stanton sided with Sheeran, saying the deposit copy was the “sole definition” of the copyrighted song.

He said the more famous recording would be “inadmissible in any way which might confuse the jury into thinking it represents what is protected by copyright.”

“The Gaye sound recording contains many elements … which do not appear in the simple melody of the deposit copy,” the judge wrote at the time. “These additional elements — at least some of which appear in ‘Thinking Out Loud’ in more or less similar form — are not protected by copyright, because they are not in the deposit copy.”

Video Showdown

As the trial has drawn nearer, the two sides switched to fighting about a key piece of potential evidence: That video of Sheeran playing both songs.

In the six-minute snippet of a November 2014 concert in Zurich that’s been viewed nearly 300,000 times on YouTube, Sheeran seamlessly switches from “Thinking” to “Lets” and back again, drawing huge cheers from the crowd.

In seeking to introduce the clip into the trial, lawyers for the accusers argued that the medley video is “among the most important and critical evidence” in their case against Sheeran, saying it will provide “helpful guidance to highlight and/or illustrate those similarities and why they are significant.”

But Sheeran’s attorneys argued that playing the clip in the courtroom would “mislead the jury and cause unjustified prejudice.” 

While such a performance might appear to be evidence of illegal copying, Sheeran’s team argued that it really only showed that both songs feature that common chord progression that’s “freely available to all songwriters.”

Last month, Judge Stanton denied Sheeran’s request to ban the video from the proceedings, meaning that the clip could be fair game.

But the judge also explicitly noted that Sheeran’s attorneys could re-raise their objections to the video at trial — meaning the infamous YouTube video might ultimately still be barred from the courtroom. Stayed tuned.

The Fight Ahead

The trial, taking place at the U.S. federal courthouse in Lower Manhattan, kicks off with jury selection on Monday before actually getting under way with opening statements on Tuesday.

Testimony is expected to run at least through Friday, meaning a verdict could arrive Friday or early the following week.

Though a witness list hasn’t been made public, Sheeran himself is likely to testify in his own defense, just like he did at the trial in London last year. Earlier this month, attorneys for the Townsend heirs filed a formal notice that had sought a subpoena requiring the star to appear at the upcoming trial.

Witnesses will also likely include Amy Wadge, who co-wrote “Thinking” with Sheeran (but isn’t named as a defendant), and Jake Gosling, who produced the song (also not named as a defendant), as well as Sheeran’s manager Stuart Camp. Both sides will also call their musicologists as expert witnesses – Ferrara for Sheeran and Alexander Stewart, a professor at the University of Vermont, for the plaintiffs.

Sheeran will be represented by Donald S. Zakarin, Ilene S. Farkas, Andrew M. Goldsmith and Brian M. Maida of the law firm Pryor Cashman, a veteran music litigation team that has previously handled such cases for Ariana Grande and Megan Thee Stallion and just won the dismissal of a similar lawsuit against Childish Gambino.

Handling the case for Kathryn Townsend Griffin and the other Townsend heirs will be Patrick R. Frank, Keisha D. Rice and Katherine L. Viker of the Florida-based firm Frank & Rice PA, as well as Benjamin Crump – a well-known civil rights attorney who rose to prominence representing the families of Trayvon Martin, George Floyd and Ahmaud Arbery in wrongful death cases. Crump has recently been busy in the music world, representing both Dorothy Carvello in her case against Atlantic Records and victims of the disaster at Astroworld in their cases against Live Nation.

With Crump in the courtroom, some fireworks could be in store. Last month, he held a press conference outside the courthouse in which he claimed that Sheeran “blatantly took a Black artist’s music who he doesn’t view as worthy as compensation.”

In filings since then, Sheeran’s attorneys have warned Judge Stanton that they believe Crump is planning to make similar statements about “racism in the music industry” and “cultural appropriation” as part of his closing arguments to the jury — and that doing so might present grounds for a mistrial.

“We believe the weakness of the [copyright] claim accounts for the plaintiffs’ effort to taint the jury by insinuating emotionally charged, untrue and completely irrelevant accusations  into this case, not as evidence, but as argument and attempted character assassination,” Sheeran’s lawyers wrote. “We respect Mr. Crump’s right to raise institutional concerns he may believe exist, but not in this case and not in this forum.”