Ed Sheeran’s Copyright Accusers Call YouTube Concert Clip ‘Critical Evidence’ in ‘Thinking Out Loud’ Trial
The video, which Sheeran's lawyers want banned from a looming trial, shows the star toggling between his song and a Marvin Gaye classic.
Lawyers for Ed Sheeran’s copyright accusers are firing back at the star’s efforts to ban an infamous YouTube clip from an upcoming trial over “Thinking Out Loud,” calling the video “among the most important and critical evidence in this case.”
With a trial looming in April over whether Sheeran’s smash hit infringed Marvin Gaye‘s “Let’s Get It On,” a pre-game showdown is brewing over whether jurors will get to watch the YouTube video. In it, Sheeran draws cheers at a 2014 concert by seamlessly toggling between the two songs.
Earlier this month, the star’s lawyers argued that the clip will confuse jurors. While such a performance might appear to be evidence of illegal copying, Sheeran’s lawyers argued that it really only showed that both songs feature a common chord progression that’s “freely available to all songwriters.”
But in a response on Thursday (Feb. 23), lawyers for Sheeran’s accusers said the clip was obviously relevant to the core dispute in the case: whether “Thinking Out Loud” shares enough similarities with “Let’s Get It On” to constitute copyright infringement.
“The video of the medley at issue provides helpful guidance to highlight and/or illustrate those similarities and why they are significant,” attorney Patrick Frank wrote. “The medley which defendants belatedly seek to exclude from admission at trial … is among the most important and critical evidence in the case.”
The current case against Sheeran was filed way back in 2017 by heirs of Ed Townsend, who co-wrote “Let’s Get It On.” Gaye’s heirs, who once famously sued Robin Thicke over accusations that his “Blurred Lines” was stolen from the legendary singer, are not involved in the case.
Sheeran’s lawyers have long argued that the star did nothing wrong, since “Thinking Out Loud” and “Let’s Get It On” share only “unprotectable and commonplace elements” that are not covered by copyright law. But Judge Louis D. Stanton has repeatedly refused to decide the case in their favor, ruling that the dispute is close enough that it must be decided by a jury.
In the lead-up to the trial, attorneys for the Townsend heirs filed a formal notice that they planned to play the YouTube clip for jurors. In the video — a six-minute snippet of a November 2014 concert in Zurich, Switzerland that’s been viewed nearly 300,000 times — Sheeran abruptly switches from “Thinking” to “Let’s” and back again, drawing huge cheers from the crowd.
In Thursday’s new filing, those same lawyers pointed out that the judge overseeing the case previously singled out the YouTube clip as potential evidence that might resonate with jurors, saying they “may be impressed” by the footage. “Presumably, if the court believed that the video … would be improper for a jury to view at trial, the court would have been reticent to state a jury’s possible interest in the same,” the Townsend lawyers wrote this week.
In seeking to exclude the clip, Sheeran’s lawyers argued earlier this month that allowing such evidence could have a broader “chilling effect” on the music industry and on medleys, which they called an “important, enduring aspect of live concerts.” But in Thursday’s response, the lawyers for the Townsend heirs sharply disagreed.
“Defendants have provided nothing beyond mere speculation that the inclusion of directly relevant evidence … would have any collateral impact on any aspect of the concert industry.”
An attorney for Sheeran declined to comment on the new filing. But earlier on Thursday, the star’s lawyers filed a motion arguing that the deadline for such a response had already expired; they can file a formal reply brief in the weeks ahead.