The year didn’t start on a high note for Ed Sheeran. Back in 2016, Sheeran was sued by the heirs of “Let’s Get It On” (LGO) co-writer, Ed Townsend, who accused Sheeran of copying several elements of LGO in his 2014 hit, “Thinking Out Loud” (TOL).  Sheeran tried to get the suit thrown out on summary judgment, but three days after the New Year, U.S. District Judge Louis L. Stanton denied Sheeran’s motion, finding that “material facts are in dispute” and thus the case would need to be decided by a jury.

In his opinion, Judge Stanton explained that a jury would need to determine “whether TOL infringes LGO.”  Judge Stanton added that, “Not only are there substantial similarities between several of the two works’ musical elements, but an ordinary observer might experience the aesthetic appeal of both works as the same.” He went on to say that “[a jury] may be impressed by footage of a Sheeran performance which shows him seamlessly transitioning between ‘LGO’ and ‘TOL.’” Here, the judge was referencing a YouTube video where Sheeran performed a mashup of the two songs at a concert. In the same vein, however, Judge Stanton expressed his view that a jury might side with Sheeran, who argued that “the total concept and feel of the two works is different because ‘TOL is characterized by somber, melancholic tones, addressing long- lasting romantic love whereas the LGO Recording is a sexual anthem that radiates positive emotions and encourages the listener to ‘get it on’.’”

Notably, the court also declined to decide whether to adopt the Ninth Circuit’s ruling in Skidmore for Randy Craig Wolfe Tr. v. Led Zeppelin, which held that the scope of copyright protection for an unpublished work under the Copyright Act of 1909 is defined by the deposit copy (i.e. the “bare-bones written version of the song deposited at the Copyright Office”), as opposed to the sound recording (i.e. the final, recorded version of the song that we hear on the radio). In other words, the Ninth Circuit concluded that a sound recording (which was not the deposit copy) could not be used to prove substantial similarity between two works. Although a sound recording could not be used as the deposit copy for a musical composition under the 1909 Act, an author can under the 1976 Act, submit a recording rather than sheet music as the deposit copy for a musical composition.

But here, the court held that the outcome of the summary judgment motion would have been the same whether or not it concluded that the sound recording was deemed evidence of the breadth of the copyright in the composition. Judge Stanton explained that the similarities between the two songs found in the deposit copy were enough to defeat the motion without having to consider elements from LGO’s sound recording, which were not present in the deposit copy. Nevertheless, this issue remains undecided in the Second Circuit and the court may have to face it at trial if LGO’s sound recording is offered into evidence.