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Writers of Marvin Gaye's "Let's Get It On" Get It On Against Ed Sheeran

By Barry Werbin

Well this time around it's not the Marvin Gaye Estate pursuing a high profile infringement claim, as it did successfully last year against Robin Thicke and Pharrell Williams over Blurred Lines (on appeal in the Ninth Circuit). Now, the heirs of one of the two songwriters (Ed Townsend, the other co-writer being Gaye) of the great R&B classic "Let's Get It On", made famous by Gaye's iconic 1973 recording, has sued UK pop singer/songwriter Ed Sheeran, his co-writer, Sony/ATV and others in the Southern District of New York for copyright infringement over Sheeran's 2014 hit recording "Thinking Out Loud". The Townsend heirs allege that they own 100% of the copyright in the "Let's Get It On" musical composition.

The complaint alleges that Sheeran's song, which rose to the top of the charts in the US and UK and was nominated for a Grammy, copied the core "harmonic, melodic, and rhythmic elements" of "Let's Get It On." In particular, the complaint alleges that the "prominence of the bass line and drum composition throughout Let's [Get It On] make these compositional elements qualitatively important to the musical work as a whole. The combination of these elements is the driving force of this composition."

Sheeran and the other defendants are further alleged to have willfully infringed "Let's Get It On" because they were notified of the infringement claim by email or phone in April 2015 but continued to exploit the song thereafter.

Make your own assessment of substantial similarity and feel free to comment. Compare the two songs at https://www.youtube.com/watch?v=x6QZn9xiuOE and https://www.youtube.com/watch?v=lp-EO5I60KA.

Interestingly, the complaint adds separate claims for false designation of origin and "reverse passing off" under the Lanham Act based on false representations to the public that the defendants created and were the authors of "Thinking Out Loud", causing public confusion. While I try to be objective in these postings, this claim sounds like a real stretch, as Sheeran and his co-author presumably did in fact write "Thinking Out Loud", even if it turns out to be infringing. These claims face a similar challenge as the copied work did in Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), where the Court held that the phrase "origin of goods" in the Lanham Act "refers to the producer of the tangible goods that are offered for sale, and not to the author of any idea, concept, or communication embodied in those goods." Id. at 37. In Dastar, the producer of the copied TV series was the "origin" for Lanham Act purposes, barring a claim by the original creator of the series for false designation of origin. Justice Scalia wrote that Section 43(a) of the Lanham Act "prohibits actions like trademark infringement that deceive consumers and impair a producer's goodwill," but that "[t]he words of the Lanham Act should not be stretched to cover matters that are typically of no consequence to purchasers."

Kathryn Townsend Griffin, et al. v. Edward Sheeran et al., No. 1:16-cv-06309 (S.D.N.Y.), filed August 9, 2016. The plaintiffs are represented by Frank & Rice P.A. based in Florida. A copy of the complaint is here: Sheeran complaint.pdf

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