Ed Sheeran Win Assuages Music Creators Fearing Litigation Frenzy

Pop star Ed Sheeran’s victory in the latest high-profile music trial alleviates some litigation fears in the recording industry and offers a blueprint for how songwriters accused of copyright infringement should testify before a jury.

The verdict, clearing Sheeran of copying Marvin Gaye’s “Let’s Get It On” to write his hit “Thinking Out Loud,” follows a string of wins by defendants including Katy Perry and Led Zeppelin.

It stands in contrast to the multimillion-dollar 2015 verdict against Pharrell Williams and Robin Thicke over their song “Blurred Lines” that sparked the current litigation frenzy. English pop star Dua Lipa, for example, is currently defending two different lawsuits filed last year over her hit “Levitating,” while rapper Childish Gambino is also intertwined with a similar copyright case involving the song “This Is America.”

“Had the case gone the other way it would have had a chilling effect on the entire industry,” David Israelite, the president of the National Music Publishers Association, told Bloomberg Law in a statement. “Hopefully this result discourages frivolous lawsuits that detract from important copyright issues facing music creators.”

But while many in the music industry are applauding the outcome, copyright experts are quick to note that the judge still let the lawsuit advance to trial, stretching the case to almost seven years of litigation.

“This case could have been resolved earlier and should have been resolved earlier,” said Joseph Fishman, a music copyright professor at Vanderbilt University. “But it helps build a narrative and I think gives people in the industry some sense of relief that not every case is going to turn out the way the ‘Blurred Lines’ litigation did.”

Independent Creation

After only two hours of deliberation, a seven-person Manhattan jury on Thursday found that Sheeran and his co-writer Amy Wadge had created “Thinking Out Loud” independently, which is an absolute defense against copyright infringement.

The estate of Ed Townsend, Gaye’s co-writer on the 1973 soul classic, argued that a video showing Sheeran seamlessly weaving the two songs together at a live performance was a “smoking gun,” evidence that he copied.

While a jury verdict doesn’t set legal precedent, Sheeran’s strategy at trial may outline an effective way to convince jurors who aren’t well-versed in music theory.

Sheeran spent multiple days on the witness stand during the two-week trial, at times demonstrating chord progressions on his guitar and detailing the night that he and Wadge created “Thinking Out Loud.”

He said they wrote the song one night in February 2014 while the two were discussing recent deaths in their family and the loss that elderly people face when a loved one dies.

Sheeran’s attorney Ilene Farakas of Pryor Cashman LLP emphasized during closing arguments that the song has nothing to do with “getting it on” and that Sheeran and Wadge’s testimony about that night wasn’t rebutted.

Sheeran and his expert witness also spent time arguing similar chord progressions and harmonic rhythms between the songs are commonplace musical elements that no songwriter can own.

But the jury ultimately didn’t need to decide thornier questions about whether those musical building blocks are protected by copyright, having been convinced that Sheeran and Wadge created “Thinking Out Loud” on their own.

“It’s almost like a copyright policy argument that they’re bringing to the jury’s attention, like, ‘Hey I made this myself, copyright is all about creation,’” said Jacob Noti-Victor, an intellectual property professor at the Benjamin N. Cardozo School of Law. “As a narrative approach, it seemed like it was quite effective.”

But from a legal perspective, the independent creation argument hasn’t always been the strongest. Sheeran admitted that he had heard “Let’s Get It On"—a universally renowned song—and courts have held that songwriters can be found liable for subconscious copyright infringement.

In this case, at least, the jury found the argument persuasive. Sheeran’s performance on the witness stand may also have helped him with jurors.

“By all accounts, he seemed like an affable guy and he comes across as more genuine,” said Kristelia García, a copyright law professor at the University of Colorado Boulder. “The jury must have liked him more than they liked the defendants in ‘Blurred Lines.’”

Ben Crump Law PLLC and Frank & Associates represented the Townsend estate.

The case is Griffin v. Sheeran, S.D.N.Y., No. 1:17-cv-05221, jury verdict 5/4/23.