March 26, 2020 Musicology No Comments

Ed Sheeran is waiting for his day in court, facing Ed Townsend’s charge that megahit “Thinking Out Loud” infringes on “Let’s Get It On,” another megahit by Marvin Gaye. (Townsend co-wrote it.)

And while the case doesn’t get to court for months, Sheeran’s case probably got a boost from the recent Dark Horse ruling and perhaps substantially from last month’s Stairway decision, in which the ninth circuit en banc affirmed the finding that Stairway does not infringe upon Taurus.

Recall that the recording of Taurus was never played in the courtroom, and instead, Taurus was only allowed to defend copyright over the “deposit copy” — a super-simplified sheet music transcription of Taurus that was registered with the US Copyright Office. That’s the law, and although it was heavily challenged in court and on appeal, the recent decision very clearly upheld the district court ruling that the audio was out.

And so the audio is out for “Let’s Get It On” as well.

Judge Louis Stanton: “…the Gaye sound recording is inadmissible in any way which might confuse the jury into thinking it represents what is protected by copyright. ”

“For example, comparisons of elements in ‘Thinking Out Loud’ which are similar to elements in the Gaye sound recording, but not the deposit copy, will not be allowed”.

I read this as Stanton anticipating and preemptively ruling on a few things… (1) His honor is not going to want to see forensic musicology that refers to elements that are on the record but not on the deposit copy — making it a particularly artful task for a musicologist to nevertheless shoehorn such features in a creative and alternatively justifiable fashion. and (2) Townsend trying to get the audio played, not as part of the similarity argument, but as a part of the access argument. A lot was made of that in Stairway. Jimmy Page had to leave the courtroom, go listen to Taurus away from the jury, and then return and testify about whether he’d heard it before. Plaintiffs attorney Francis Malofiy argued on appeal that Page should’ve somehow stayed in the jury’s view while listening so that the jury could observe his reaction to the audio, even while not hearing it themselves.

Sheeran is far from off the hook. This only affects the audio of “Let’s Get It On” though. I don’t see how this prevents the playing of a well-circulated live recording in which Sheeran segues into “Let’s Get It On” midway through his performance of “Thinking Out Loud.”

Written by Brian McBrearty