Estate of ‘Let’s Get It On’ co-writer drops appeal in Ed Sheeran ‘Thinking Out Loud’ copyright battle

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Ed Sheeran at the at Grand Hyatt Hotel on February 23, 2018 in Berlin, Germany

The estate of Ed Townsend, co-writer of Marvin Gaye’s Let’s Get It On, have formally ended their court battle with Ed Sheeran over their claims that Sheeran’s Thinking Out Loud copied the iconic 1970s R&B song.

A jury in a federal court in Manhattan ruled in favor of Sheeran in May, rejecting the Townsend estate’s assertion that Sheeran’s 2014 hit Thinking Out Loud “copied the heart” of Gaye’s 1973 hit Let’s Get It On.

That led to the Townsend estate filing an appeal with the US Court of Appeals for the Second Circuit. However, in a filing with the court last Wednesday (September 20), the family withdrew their motion for appeal “with prejudice,” meaning the case can’t be refiled.

Lawyers for Townsend’s family didn’t comment on the matter, but Ilene Farkas, Sheeran’s lawyer in the case, offered the media a theory for why the case was dropped.

“Ed defended this claim, which was always viewed as baseless, through to a jury verdict finding he and [Thinking Out Loud co-writer] Amy Wadge independently created Thinking Out Loud, and was fully prepared to do so through an appeal as well,” Farkas said in a statement, as quoted by ABC News.

“The plaintiffs recognized that an appeal would end up with the verdict being affirmed but also with them being exposed to legal fees and costs, and wisely withdrew the appeal.”

The Townsend family originally filed the lawsuit in 2016, asserting that “the melodic, harmonic and rhythmic compositions of [Thinking Out Loud] are substantially and/or strikingly similar to the drum composition of [Let’s Get It On].”

During the jury trial last May, lawyers for Townsend’s family played a video clip of Sheeran performing Thinking Out Loud live in concert, during which he segued to lyrics from Let’s Get It On. The Townsend family lawyers called this a “smoking gun” and an act tantamount to a “confession” of plagiarism.

However, Sheeran responded during his testimony that “if I had done what you’re accusing me of doing [i.e. copying elements of Let’s Get It On for Thinking Out Loud, then switching between both songs while playing live], I’d be quite an idiot to stand on a stage in front of 20,000 people and do that.”

Sheeran and his lawyers argued that the chord progression in both songs is so common as to amount to “building blocks” of pop music.

A few weeks after Sheeran’s victory in that case, the judge presiding over it dismissed another case involving Thinking Out Loud and Let’s Get It On, this one brought by by Structured Asset Sales (SAS), which claims to own 11.11% of beneficial interest in the right to receive royalties from Let’s Get It On.

SAS is a company founded and run by David Pullman, the inventor of “Bowie Bonds,” a form of asset-backed security that used income from David Bowie’s record sales and live performances as collateral.

“The plaintiffs recognized that an appeal would end up with the verdict being affirmed but also with them being exposed to legal fees and costs, and wisely withdrew the appeal.”

Ilene Farkas, lawyer for Ed Sheeran

SAS made similar allegations as the Townsend family. However, in that case, Judge Louis Stanton ruled in Sheeran’s favor, stating that “Let’s Get It On’s chord progression was used at least 29 times before appearing in Let’s Get It On and was in another 23 songs before Thinking Out Loud was released.”

“It is an unassailable reality that the chord progression and harmonic rhythm in Let’s Get It On are so commonplace, in isolation and in combination, that to protect their combination would give Let’s Get It On an impermissible monopoly over a basic musical building block,” Stanton’s ruling stated.

However, Pullman told media in the aftermath of the ruling that he planned to appeal.

SAS also has a second case pending against Thinking Out Loud’s authors, this one based on a 2020 re-registration of the copyright of Let’s Get It On.

In comments to media last week, Pullman said the withdrawal of the Townsend family’s appeal will not affect either of SAS’s cases against Thinking Out Loud.Music Business Worldwide

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