“Thinking Out Loud” About Copyright Infringement (Again)

Ed Sheeran has had plenty of court troubles recently.  After reportedly reaching a settlement over his song “Photographearlier this year, he was recently sued (a second time) for his song “Thinking Out Loud.”

The lawsuit alleges that “Thinking Out Loud” copied Marvin Gaye’s song “Let’s Get it On.”

The lawsuit, which was brought by the heirs of Gaye’s co-writer Ed Townsend, was first filed in August 2016 and later dismissed in February 2017 on the grounds that Sheeran (and others in the UK) were not served within the required time frame.  Apparently the plaintiffs struggled to serve Sheeran due to the refusal of defendants’ counsel to accept service on behalf of the defendants, confusion over international service procedures under the Hague Convention, and the inability of the plaintiffs to personally locate Sheeran to hand-deliver service.

Presumably in anticipation of the opportunity to locate and personally serve Sheeran in the US during his upcoming 2017 US tour, the new complaint was filed on July 11, 2017.  It worked this time, as the defendants’ counsel has accepted service for Sheeran.

The new complaint is virtually identical to the August 2016 complaint.  A copy of the new complaint, which was filed in the Southern District of New York is available here.

According to the complaint:

The Defendants copied the “heart” of Let’s and repeated it continually throughout Thinking. . . . The melodic, harmonic, and rhythmic compositions of Thinking are substantially and/or strikingly similar to the drum composition of Let’s.

The complaint notes that the similarity between the songs was pointed out as early as 2015, when an article characterized Sheeran’s work as a “ripoff” of Martin Gaye eclipsing that of the high profile case of Robin Thicke and Pharrell Williams’ “Blurred Lines.”  The article drew special attention to the “gently loping four-note bass pattern and crisp 70’s soul drums” and the “embrace-insistent lyrics and general candlelit-bedroom feel.”

The complaint also noted that, at a Zurich concert in 2014, Sheeran – perhaps unwisely – blended the two songs in a way that makes the distinction between the two difficult to discern.

To prove copyright infringement, the plaintiffs must prove that “Thinking Out Loud” is “substantially similar” to “Let’s Get it On.”

In addition to copyright infringement, the complaint also brings causes of action for false designation of origin and “reverse passing off” under the Lanham Act, unjust enrichment, demand for accounting, and preliminary and permanent injunction.

Sheeran’s answer to the complaint is due on September 18.

Here are the two songs:

What do you think?

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