1:11pm PT by Eriq Gardner
Ed Sheeran: A Tale of Two Song Theft Lawsuits (and a Thousand Journalists)
In the media business, there is a tendency to treat all lawsuits with some sort of equivalency. In some respects, since journalists are not judges nor learned legal scholars, it makes sense to write up all lawsuits as a serious matter while withholding judgment about the merits of a claim. Unfortunately, though, this lack of discrimination also gives readers a poor idea of which legal actions stand the best odds of success. A good example is the copyright lawsuit filed this week against pop superstar Ed Sheeran over "Thinking Out Loud," which follows another copyright lawsuit filed in June over Sheeran's "Photograph."
The "Thinking Out Loud" lawsuit has the outward appearance of trouble for Sheeran given the lineage of the plaintiffs — heirs of Ed Townsend, co-writer of the lyrics of Marvin Gaye's classic "Let's Get It On." Perhaps for this reason, when TMZ first reported the lawsuit, it and other news outlets quickly drew a parallel to the one filed over "Photograph" by two songwriters.
However, besides the fact that both lawsuits involve copyright and songcraft and works that most people are familiar with, there's a pretty reasonable argument to be made that these two lawsuits should not be treated in the same breath.
Get past the lawyers involved. (The plaintiff in the "Photograph" case is represented by the victorious attorney who convinced a jury that "Blurred Lines" was lifted from Marvin Gaye's "Got to Give It Up," while confusingly, the one now fighting to protect Marvin Gaye's "Let's Get It On" is a Florida attorney without much of a reputation in entertainment circles.)
Just focus on what was actually filed in court. The contrast is pretty stark. Here, for example, is the way that Sheeran allegedly infringed "Let's Get It On." It comes from the plaintiff's complaint:
That's pretty much it. How is the melody, harmony and rhythm similar? No word. That will likely become a problem for plaintiffs as copyright law only protects expression — not generic ideas. A failure to specify the striking similarity leaves the plaintiff open to a challenge for not pleading a plausible claim of infringement. Emphatic underlining hardly cures this fault. (The case is being brought in New York federal court, which isn't particularly friendly to copyright plaintiffs.)
Now, check out the complaint that alleges that Sheeran infringed the 2009 work "Amazing" to create "Photograph." We can't quote it in full because, well, it's too long. But here's a taste of how the plaintiffs in this case are addressing the substantial similarity factor:
As one can see, the nuance matters. A judge and maybe a jury will still have to weigh the evidence and figure out what's generic and what's protectable, but at least it feels more persuasive. Sheeran will probably have a much tougher time dismissing this one at an early stage, and regardless of whether it actually gets to trial, that gives the plaintiff much greater leverage in pursuing discovery and maybe negotiating a settlement.
The way in which these plaintiffs describe the infringement involved is hardly the only difference. "Let's Get It On" was created under the old 1909 Copyright Act. Those who paid close attention to the "Blurred Lines" and "Stairway to Heaven" trials will know this means that what's copyrighted is restricted to what was deposited with the U.S. Copyright Office back in the early 1970s. In other words, the sheet music. For that reason, while the "Thinking Out Loud" case might suggest misappropriation of something like rhythmic elements, the failure to more fully identify what the plaintiffs really own could be damning.
It's understandable that many journalists may not recognize this, but those who actually took the time to review the "Thinking Out Loud" complaint could recognize signs of amateurism. See below. First up is the official list of the defendants in the caption of the case. Then, later in the complaint comes the odd appearance of Universal as a supposed "defendant":
Lawsuits are indeed a serious matter, given the onuses on what lawyers must do before filing. Journalists tend to treat them as such and even a whiff of legal intrigue adds up to news stories. Anybody see all the reports (like here) about someone on Reddit merely threatening a lawsuit against Warner Bros. over its trailer for Suicide Squad?
We have a modest request to all the other reporters out there: Before writing about a lawsuit, obtain and read the complaint for yourself. Form your own analysis. Don't rely on other news reports. Just because TMZ is reporting something doesn't mean anything. We're even happy to help out. Here is the full complaint filed over "Thinking Out Loud."