Ed Sheeran sued in the USA over alleged copyright infringement of Marvin Gaye classic

17th August 2016 Commercial

Ed Sheeran is facing claims of copyright infringement relating to his hit Thinking Out Loud. The track won best pop solo performance at the 2016 Grammy Awards and was the first song to reach 500 million streams on Spotify.

The claim was filed in the USA by the heirs of the late Ed Townsend, who co-wrote the Marvin Gaye classic Let's Get It On. Townsend's heirs claim that Thinking Out Loud copies key parts of the 1973 hit. The claimants are seeking a jury trial in which they hope to prevent further performances of Thinking Out Loud as well as claim damages and profits from the song.

This latest US copyright dispute bears similarities with the claim made by the family of Marvin Gaye against Pharrell Williams and Robin Thicke in which they successfully argued that the track Blurred Lines breached the copyright of Gaye's 1977 hit Got To Give It Up. In that case the defendants were required to pay over $7 million in damages. Another recent US case saw Led Zeppelin's Jimmy Page and Robert Plant unsuccessfully sued over Stairway to Heaven.

In the UK, copyright is protected by the Copyright, Designs and Patents Act 1988 (CDPA). The copyright in a sound recording is a separate right from the copyright in the underlying composition (the words and music). Original literary and musical works (such as an underlying composition) are protected under the CDPA, as are sound recordings. Infringement of copyright can occur when a person does an act restricted by the CDPA without the copyright owner's consent, such as copying or making adaptations of the work.

So how would claims such as that against Sheeran be handled if brought in the courts of England and Wales? Under English law, a key aspect of proving a claim of copyright infringement is to show that a substantial part of the copyright work has been used without permission. The test for what qualifies as a 'substantial part' is a subjective one, and each case will be assessed on its own merits. A substantial part is not necessarily a large part (quantitatively speaking). The use of small but significant part of the original work can also qualify.

A good example comes from the case of Ludlow Music Inc v Robbie Williams & Others, which related to the Robbie Williams track Jesus In A Camper Van. The claimants owned the copyright in the song I Am The Way (New York Town) by Loudon Wainwright III, and claimed the track written by Robbie Williams and Guy Chambers infringed the copyright in that composition. Williams acknowledged that his track was inspired by the claimants' song, and his representatives had originally tried to negotiate with the claimants over clearance of the composition. However, the album containing the track in question was released without agreement being reached.

The court held that although the words in question formed only a small part of the overall lyrical content of the song, Williams and Chambers had taken the central idea of the original song and embodied it in almost identical lyrics. They were found to have copied a substantial part of the original song and so the claimants were entitled to damages or an account of profits.

There are limited exceptions under the CDPA which allow the use of copyright material without the permission of the copyright owner. These include the limited, reasonable use of such material for the purpose of caricature, parody or pastiche.

Although Townsend's heirs are seeking a jury trial in the USA, if the claim was brought in the UK it would ultimately be decided by a judge who would have knowledge of previous case law and precedents. It is arguable that a jury trial could potentially create more uncertainty in terms of the outcome of the case.

In some cases of copyright infringement, an injunction may be granted which prohibits any further infringement taking place. However, in cases relating to the use of musical compositions the original writer may prefer to be credited as a contributor, which will then entitle them to royalty payments.

If you believe your copyright, performers' rights or other intellectual property rights have been infringed, contact the JMW Litigation team on 0345 872 6666.

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Nick McAleenan is a Partner located in Manchester in our Media & Reputation Management; Data Protection & Privacy department

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