In relation to his is song “Shape of You”. Over the pond, Sheeran is accused of copyright infringement of Marvin Gaye’s “Let’s Get It On” in his song “Thinking Out Loud“.
1) The Scope of Copyright Protection
In support of the application for copyright infringement, Townsend submitted the sheet music for LGO. Sheeran argued that the LGO deposit defines the scope of protection, pointing to a previous case (Wolfe v. Zeppelin 905 F . 3d 1116, 9th C 2018) that held the deposit of the plaintiffs work, rather than the sound recording, defined the scope of protection, since the purpose of the deposit is to identify the work in which copyright is claimed.
Both parties agreed that the LGO deposit copy includes the composition’s key, meter, harmony (chord progression), rhythm, melody, lyrics, and song structure, but Townsend argued that the composition is embodied on the Gaye recording.
This is important because, as the court noted, hearing the percussion and bass increases the perception of similarity between the works. At this stage, the court left this question open.
Under US law, to prevail on a copyright infringement claim, a plaintiff must establish that the defendant has actually copied the plaintiff’s work; and that the copying is of a substantial similarity exists between the defendant’s work and the protectible elements of plaintiff’s. The test for substantial similarity is whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetic appeal as the same.
In doing so the court considers, whether an average lay observer would recognise the alleged copy as having been appropriated from the copyrighted work. However, where a work has both protectible and unprotectible elements, the analysis must be more discerning, and involves extracting the unprotectible elements from the consideration. The Court then only asks whether the protectible elements, standing alone, are substantially similar.
In the present case, both parties submitted musicologist reports and agreed to some similarities between the songs such as the I – iii – IV-V harmonic progression, harmonic rhythm with anticipated
second and fourth chords, melody , bass – line , and percussion. Parties dispute the similarity of the vocal melody, harmonic rhythm, harmony, bass-line and percussion. There is no claim of similarities between the lyrics or song structures.
The Judge noted that the key, tempo, meter, and genre of the two compositions are similar , but are unprotectable elements. Sheeran pointed to other elements – song structure , lyrics , and tone – to highlight the difference in “total concept and feel” between the works; submitting that TOL is characterised by somber, melancholic tones, about long-lasting romantic love, whereas LGO is a “sexual anthem that radiates positive emotions and encourages the listener to get it on”.
In light of which, the judge held that the question whether TOL is substantially similar LGO should be determined by trial rather than summarily.
3) Is it Infringement or Are The Parts Taken Common Place?
The parties also dispute whether the harmonic rhythm of that four-chord progression – the second and fourth chords being “anticipated” or placed ahead of the beat – is protectable. Sheeran says its a common place technique, Townsend claims its distinctive.
Both disagreements precludes summary judgment since the question of whether the elements warrant copyright protection is a factual question to be determined at trial.
4) Does the Plaintiff Have Standing?
and thus entitled to 30% of the royalties from his music.