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Ed Sheeran is asking a New York federal judge to reconsider his bid to avoid a copyright infringement trial over his 2014 song “Thinking Out Loud.”
The heir of songwriter Ed Townsend, who co-wrote Marvin Gaye’s hit “Let’s Get It On,” sued Sheeran in June, claiming his track infringes on her partial copyright in the classic. U.S. District Judge Louis Stanton earlier this month denied Sheeran’s motion for summary judgment, finding similarities in both the musical elements and the overall “aesthetic appeal.”
On Thursday, Sheeran asked Stanton to either reconsider the matter or certify an interlocutory appeal of the ruling.
Quoting Oliver Wendell Holmes, Sheeran’s attorney Donald Zakarin argues “literature is full of coincidences which some love to believe are plagiarisms” and, in music, coincidental similarity is even more likely because the “vocabulary” of musical composition pales in comparison to that of the written word.
Zakarin argues “Let’s Get It On” is based on common musical elements and “Thinking Out Loud” was independently created. Stanton, according to the motion, “overlooked” the issue of protectability and should have removed the “basic musical building blocks” from the equation when evaluating the similarity of the songs.
“Because the undisputed evidence is that the harmonic progression and the harmonic rhythm in LGO were commonplace, unprotectable musical building blocks, which were well-known and often used long before LGO, the Court should reconsider the Decision and extract from consideration these indisputably commonplace elements,” writes Zakarin. “Once the harmonic progression and harmonic rhythm are extracted from consideration, one is led to an inexorable conclusion: TOL is not substantially similar to the protectable elements in the LGO Deposit Copy. Summary judgment should have been awarded to Defendants.”
Sheeran’s lawyer also takes issue with Stanton’s decision to stop short of ruling on whether the deposit copy of “Let’s Get It On” or the sound recording should be analyzed. (Read the full motion here.)
In other entertainment legal news:
— A performance coach is suing Showtime and the creators of Billions over the character played by Maggie Siff on the series. Denise Shull says Siff’s character Wendy Rhoades is based on her book and that series co-creator Andrew Ross Sorkin in 2015 asked her to help develop the character, but she was never compensated. “Dr. Rhoades’ technique is not a fiction created out of the minds of the showrunners and writers of Billions,” writes attorney Roseanne Felicello in the complaint. “Rather, it is an unauthorized rip-off of Plaintiff Ms. Shull’s original work, the book Market Mind Games: A Radical Psychology of Investing, Trading, and Risk.” (Read the complaint here.)
— Hollywood’s major studios and streamers have reached a deal with a company they sued for copyright infringement in January 2018. Netflix, Amazon, Disney and others sued Dragon Media, claiming its set-top box could be used to access pirated content. On Thursday, Dragon Media notified the court that the parties have reached a tentative settlement and will file documents to formally close the matter in the coming days.
— Phame Factory and Sony are nearing a settlement in a creepy dispute over internet horror sensation Slender Man. Phame Factory in July sued, claiming Sony was trying to shut down its digital film Flay because it claimed the main character copied Slender Man. The parties on Thursday filed a joint status report notifying the court that they have reached “a conceptual agreement to settle all of their claims.” They expect to finalize the agreement and file a proposed order to dismiss the lawsuit with prejudice by the end of the month.
— James Franco and his former student who claimed he wrote an early draft of The Disaster Artist and wasn’t properly credited or compensated have settled their dispute. Ryan Moody in March sued Franco’s company Rabbit Bandini Productions, claiming he took one of Franco’s classes at UCLA and prepared a screenplay for the film before being convinced to sell it for $5,000 with the promise of future work. Terms of the settlement are unclear, but Moody filed a request for dismissal on Jan. 8.
— Warner Chappell Music has settled a lawsuit over works composed by Jimmy Van Heusen, the award-winning songwriter behind Frank Sinatra hits like “Come Fly With Me” and “My Kind of Town.” Marco Berrocal, through Bourne Co., had sought to terminate Warner’s rights to unnamed compositions and the publisher sued in August, asking the court for a declaration that its rights were intact. The parties filed a joint stipulation of voluntary dismissal on Dec. 28.
— Spotify and Wixen Music Publishing reached a settlement in a $1.6 billion dispute just before the end of the year. Wixen, which administers song compositions by Tom Petty, Neil Young, Stevie Nicks and many others, in January 2018 sued Spotify claiming it was using tens of thousands of songs including Petty’s “Free Fallin'” without a license and compensation. In a statement to Billboard, Wixen president Randall Wixen said, “Spotify listened to our concerns, collaborated with us to resolve them and demonstrated throughout that Spotify is a true partner to the songwriting community.”
— Player founding members Ronn Moss and Peter Beckett have settled their dispute over the rock band’s trademark. Moss sued Beckett in May, claiming he unlawfully sought to seize “Player” for himself. In a joint announcement, the musicians said the Player trademark belongs to both of them and have agreed to allow each other limited use of the mark from this point on. To avoid confusing fans, each rocker will add his own name in front of the band’s name whenever he uses it.
— Bob Marley’s heirs have won an appeal upholding the decision from a California federal judge in 2017 that awarded the estate $2.4 million in a trademark dispute over Marley Coffee. Fifty-Six Hope Road Music ended its relationship with Jammin’ Java Corporation in 2016, but Jammin’ continued to use the Marley trademarks and the lawsuit followed. U.S. District Court Judge Stephen V. Wilson in February 2017 granted summary judgment in favor of Marley’s heirs, finding that they properly terminated the short-term license, and awarded the full gross revenue from Marley Coffee products.
In hiring news:
— Kinsella Weitzman has promoted to partner Katherine Kleindienst, Joshua Rosenberg and Nicholas Soltman. The trio of litigators has represented Legendary Pictures, Warner Bros. Entertainment, the Kardashian and Jenner families, the Michael Jackson estate, producer Barry Josephson and former NFL running back Reggie Bush, among other clients. Mitchell Silberberg & Knupp has promoted to partner entertainment and intellectual property litigators Bradley Mullins and Alesha Dominique and labor and employment attorneys Brett Thomas and Sarah Taylor Wirtz. Jenner & Block has promoted to partner entertainment and intellectual property litigator AnnaMarie Van Hoesen. Frankfurt Kurnit has promoted to partner Hannah Taylor, who is part of the firm’s advertising, marketing and public relations group. Greenberg Glusker has promoted Sally James and Mark Muir in its entertainment group, Brian Berman in its private client services group and Lori Werderitch in its litigation group.
— Tricia Legittino has joined Frankfurt Kurnit as a partner in the firm’s litigation and employment groups. She comes from Frandzel Robins Bloom & Csato and previously served as Deputy Bureau Chief of the Sexually Violent Persons Bureau of the Illinois Attorney General’s office. Legittino counsels businesses and individuals on various matters including employment, real estate and fraud, and has extensive experience representing employees and employers in sexual harassment and discrimination matters.
— Led Zeppelin’s attorney Peter Anderson has joined Davis Wright Tremaine in its entertainment litigation group. Anderson has represented music A-listers including Gwen Stefani, Britney Spears, T-Pain, Pink, Green Day and Ozzy Osbourne in a variety of matters including breach of contract, tortious interference, trademark and fraud claims. The attorney previously ran his own firm and said in a statement that he is delighted to give his clients access to DWT’s “extraordinary resources.”
— Robert (Bob) Kahan has joined Blank Rome as a partner in its Los Angeles office, where he will advise individuals and companies including restaurants, entertainers and merchandisers on a variety of corporate transactions. He comes from DLA Piper.
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