Ed Sheeran Ordered to Disclose Concert Income for Copyright Lawsuit

Ed Sheeran - The BRIT Awards Show Performance - Getty - H 2018
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Does Ed Sheeran have an absolute right to perform "Thinking Out Loud" at concert? Depending on the outcome of a copyright lawsuit, he very well may lack such right to perform one of his biggest hits, according to a decision Wednesday from a New York federal court.

Sheeran has been facing claims that "Thinking Out Loud" infringes the Marvin Gaye classic "Let's Get It On." He is being pursued by multiple plaintiffs including Structured Asset Sales, founded by investment banker David Pullman. That company made a splash in the late 1990s by securitizing future royalties to musical intellectual property. One of the deals made was with a child of Ed Townsend Jr., the late songwriter who co-wrote "Let's Get It On."

With an eye towards scoring indirect profits from Sheeran's alleged exploitation of "Let's Get It On," Structured Asset Sales attorney Hillel Parness demanded that the singer-songwriter provide detail about his live performances of "Thinking Out Loud," including ticket sales and merchandise sold at concerts.

In a 10-page opinion Wednesday (read here), U.S. District Court Judge Louis Stanton partially grants a motion to compel. Sheeran must give up information about concert revenue and expenses.

Besides arguing that such financial disclosure was unnecessary because of a lack of "causal nexus" between the alleged infringement and concert income, Sheeran's attorney Donald Zakarin contended that Sheeran had authority to perform "Thinking Out Loud" even if a jury eventually concludes the song is a rip-off. That's because each of the concert venues where Sheeran performed held valid blanket licenses from performance-rights organizations ASCAP and BMI, which had "Let's Get It On" in its repertory.

Although ASCAP isn't ostensibly taking a side in this fight, it has at least been supportive of Sheeran in the argument.

Richard Reimer, senior vp legal services at ASCAP, submitted a declaration that verified that all of the promoters and presenters of Sheeran's concerts had licenses to perform publicly all of its works, including "Let's Get It On."

That doesn't save Sheeran.

"[T]he defendants' argument lacks a foundation," rules Stanton. "There is no 'right' to infringe. BMI's and ASCAP's blanket and venue licenses could not grant a right to infringe, for there never was one. Absent inapplicable exceptions, neither the author nor any licensee of an infringing work has the right to perform it publicly."

The judge turns to the consent decrees, whereby ASCAP and BMI must offer blanket licenses to anyone who demands it. But the decrees recognized the prospect that the performance rights organization might maintain insufficient legal rights to a particular composition. As such, licenses merely cover the rights held by the PRO regardless of validity or completeness, and they are susceptible to challenge.

"BMI's and ASCAP's blanket licenses conveyed to licensees the authors' rights to perform their songs," continues the opinion. "They did not convey the consent of any author to play music which infringes his songs. And the licenses do not transform an infringing work into one that could not, as a matter of law, be infringing."