What just happened?
In 2016 two lawsuits were filed against singer/songwriter Ed Sheeran claiming copyright infringement on Marvin Gaye’s “Let’s Get It On” by Ed Townsend’s heirs (co-writer), and a company called Structured Asset Sale who hold shares in the song’s copyright. Both claimed Sheeran lifted a number of musical elements from their song[1], and placed them in his 2014 release “Thinking Out Loud”.
What does this mean?
The chronology of copyright claims in the music industry is usually characterised by a slow to non-existent progression of proceedings before something[2], or someone gives in. Louis Staton, the judge presiding over the case postponed proceedings until later in 2020, due to the importance of a separate case of Led Zeppelin and Spirit, concerning the exact same issue which was thought to decide Sheeran’s fate. Here, Spirit claimed much in the same way as Townsend and Structured Asset Sale have, that Led Zeppelin stole the defining musical elements of ‘Stairway to Heaven’ from the song ‘Taurus’ by Spirit[3]. Now known as the “Stairway precedent”[4], the rule states that short musical segments are not protected by copyright. Furthermore, it reaffirmed that this sharing of segments only applies to the registered copyrighted material.
How does this Impact the Legal Industry
The complications of this issue and the reason for an entirely new set of lawsuits claiming on the same grounds, are based on old US laws concerning the registration of copyrighted music. Before changes to the law in the 1970s, only sheet music was registerable with the Copyright Office, rather than the actual audio[5]. This therefore meant that any changes, or deference from the original score of the song in production were not protected by copyright. In light of this decision, the assessment of a claim in the circumstances presented with a pre-law change song cannot be conducted with the ears, rather the eyes.
Consequently, in the previous Sheeran cases, the judge denied the claimants the opportunity to play any recording of either song due to the fact how they sounded wouldn’t matter in regard to copyright infringement. Allowing the jury to hear both songs side by side would not give any clearer an understanding as to whether there has been an infringement.
It would be far easier to prove infringement of copyright if instead of comparing the original score of Gaye’s track to Sheeran’s, the actual audio could be compared. To do this, Structured Asset Sale must re-register their song with the Copyright Office in audio form thus allowing the two tracks to be played next to each other in court, something that the claimants believe will strengthen their case. Their application to include the newly copyrighted version of the song in the existing court cases was denied, hence the brand-new claim was put forward.
Musicians should be quaking in their boots at the thought of this claim being granted and won. A victory for the claimants would open the gates for a plethora of new alleged copyright infringements on pre 70s registered songs. Given that so much of music is inspired by the works of others, with segments of songs stolen, chopped up, and re-packaged as original pieces of work, there can be similarities found everywhere [6]. Though a likeness does not infringe copyright, the potential for ‘more than likeness’ has increased tenfold by the ability to compare audio. Modern music is built on the foundations that songs composed decades ago laid out; all it would take is a few money hungry heirs to kill the capacity to create.
Written by Ewan Mason
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References:
[1] J Rosenberg, ‘Ed Sheeran Going To Trial Over 'Thinking Out Loud' Plagiarism Allegations’ (Forbes, 04/01/2019)
[2] AX Wang, ‘A Plagiarism Lawsuit Against Ed Sheeran Depends on One Against Led Zeppelin’ (Rolling Stone, 05/07/2019)
[3] T Skinner, ‘Ed Sheeran and Marvin Gaye copyright court case could be delayed until next year’ (NME, 03/06/2019)
[4] C Cooke, ‘Stairway To Heaven ruling has impact on ongoing Thinking Out Loud song theft case’ (CMU, 26/03/2020)
[5] C Cooke, ‘Ed Sheeran sued again over Let’s Get It On song-theft claim, plaintiff hopes sneaky trick will strengthen their case’ (CMU, 12/06/2020)
[6] H Bosher, ‘What's going on? Ed Sheeran's Marvin Gaye copyright case’ (BUL, 08/01/2019)
Disclaimer: This article (and any information accessed through links in this article) is provided for information purposes only and does not constitute legal advice.