By Fritz Klantschi
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The Southern District of New York recently denied musician Ed Sheeran’s motion for summary judgment in a copyright infringement case over his alleged infringement of the Marvin Gaye song “Let’s Get It On” by Sheeran’s “Thinking Out Loud.” The court held that issues remain for trial on the scope of copyright protection and the similarities between the songs.

In August 2016 Ed Sheeran together with Atlantic Recording Corporation, Sony/ATV Music Publishing, LLC and Warner Music Group Corporation were sued for copyright infringement for Ed Sheeran’s single “Thinking Out Loud” (TOL) by the heirs of Ed Townsend who co-wrote the lyrics to Marvin Gaye’s “Let’s Get it On”(LGO). On January 3, 2019, District Court Judge Louis Stanton from the Southern District of New York ruled on Defendants’ Summary Judgment Motion.  The Defendants had moved that the deposit copy, not the sound recording of LGO defines the scope of the copyright and that the two works are not substantially similar, that any alleged similarities are to unprotectable and commonplace elements and that Plaintiff Kathryn Townsend Griffin lacks standing.  Judge Stanton denied Defendants’ motion because there are material facts in dispute.

Scope of Protection: The Court stated that it was not necessary to decide whether the deposit copy – the materials filed with the U.S. Copyright Office with the application for copyright registration – defines the scope of protection or if the composition is embodied in the first mechanical reproduction of LGO. According to the court, it is not necessary to decide that issue at this time because the outcome of the motion would be the same under either view.  However, this issue may come into play at trial, as the Court noted that hearing the percussion and bass, which are included in the reproduction but not the deposit copy, increases the perception of similarity between the works.

Commonplace Musical Elements: The Court next addressed commonplace elements that are not unique to LGO, noting that various elements (key, meter, tempo, common song structures, common chord progressions, common melodies, and common percussive rhythms) are not entitled to copyright protection because they are no longer original and already in the public domain. Summary judgment was denied on which elements of the song are commonplace and unprotectable because the experts for the plaintiffs and defendants did not agree as to whether a particular musical element is original, leaving an issue for trial.

Substantial Similarity: For determining substantial similarity, the Court set forth the “ordinary observer test,” asking whether “an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1002 (2d Cir. 1995)(internal quotation marks omitted).  The Court noted that “the issue of substantial similarity is frequently a fact issue for jury resolution.”  Judge Stanton noted that a jury could find several probative similarities between LGO and TOL and that an average lay observer could conclude that parts of TOL were appropriated from LGO.  Still further, an ordinary observer might experience the aesthetic appeal of both works as the same.  Accordingly, the question of whether TOL infringes on LGO should be determined by trial rather than by summary judgment.

Standing: On the final issue raised by Defendants’ motion, Kathryn Townsend Griffin’s standing, Defendants claim that under California law, Ca. Prob. Code § 6451(a) children who have been adopted by others have no right to inherit from their biological parents. In 2008 the Superior Court of California, County of Riverside, Riverside Probate Division ordered that Ms. Griffin was an intestate heir of Ed Townsend.  Defendants contend that Ms. Griffin obtained that order by withholding material information, that she had been adopted as a child by other parents.   Judge Stanton agreed to follow the decision of the Superior Court of California which had ordered that Ms. Griffin was entitled to 30% of the royalties of Ed Townsend.

Epilogue: On March 8, 2019 the Court ordered the trial to start on September 11, 2019.