This is The Legal Beat, a weekly newsletter about music law from Billboard Pro, offering you a one-stop cheat sheet of big new cases, important rulings, and all the fun stuff in between.
This week: Ed Sheeran can’t beat a copyright lawsuit over “Thinking Out Loud,” Gunna once again demands his freedom ahead of trial, Netflix drops its infringement lawsuit over The Unofficial Bridgerton Musical, and much more.
THE BIG STORY: Ed Sheeran’s Copyright Nightmare Continues
Ed Sheeran is headed back to court for another copyright trial.
It was only six months ago that the pop star won a trial in the U.K. over claims that he copied his chart-topping 2017 hit “Shape of You” from a little-known song. When that case ended, Sheeran sounded like he had seen enough of the inside of a courtroom: “Lawsuits are not a pleasant experience and I hope that this ruling means in the future baseless claims like this can be avoided.”
But in a decision last week, U.S. District Judge Louis Stanton ruled that the star would need to face a similar trial in New York in the months ahead, over long-running accusations that his “Thinking Out Loud” – which spent 51 weeks on the Hot 100 after it was released in 2014 – infringed Marvin Gaye’s iconic “Let’s Get It On.”
Gaye’s heirs famously sued Robin Thicke and Pharrell Williams over allegations that “Blurred Lines” infringed “Got to Give It Up,” but they aren’t involved in the case against Sheeran. Instead, the case was filed by an entity owned by industry executive David Pullman called Structured Asset Sales, which owns a one-third stake in the copyrights of Ed Townsend, who co-wrote “Let’s Get It On” with Gaye.
The two songs at issue in the case do sound similar, as even Sheeran has seemingly acknowledged. In a moment he almost certainly wishes he could take back, the star was captured on video at a 2014 concert toggling between the two songs, drawing huge applause from the audience. But like so many copyright lawsuits over music, the case is not really about whether the songs sound similar, but rather whether the similarities between the songs are something that can be locked up as intellectual property.
Sheeran’s attorneys have argued that the stuff he allegedly infringed – a combination of a chord progression and the harmonic rhythm – are just basic musical tropes that cannot be monopolized by any single songwriter. In their filings, Sheeran’s lawyers cited a number of other songs, including “Since I Lost My Baby” by The Temptations, that featured similar aspects.
Sheeran’s accusers admit that those elements, by themselves, are “commonplace and unprotectable.” But they say that when they were combined together in Gaye’s famous song, they became something more original and worthy of copyright law’s benefits.
In his ruling last week, Judge Stanton said there was “no bright-line rule” for deciding such questions, and that the pop star would need to make his arguments before a jury of his peers. That sets the stage for a blockbuster showdown in federal court – over whether Sheeran infringed a copyrighted song, or merely re-used musical building blocks. We’ll be there when it happens.
Other top stories this week…
CA PASSES LANDMARK RAP LYRICS LAW – California Gov. Gavin Newsom signed into law a first-in-the-nation statute that aims to restrict when prosecutors can cite rap lyrics as criminal evidence against the artists who wrote them. Labeled the Decriminalizing Artistic Expression Act, the new law will effectively ban such lyrics from the courtroom unless prosecutors can show that they are directly relevant to the facts of the case and won’t “inject racial bias into the proceedings,” among other hurdles to using them.
GUNNA DEMANDS FREEDOM AGAIN – California’s new law won’t be of any help to Gunna, who remains in jail awaiting trial on a gang-related indictment that repeatedly quotes his music. In a new filing last week, the rapper’s attorneys once again demanded that he be freed ahead of trial (currently set for January), arguing that prosecutors have not shown a “shred of evidence” that he’s going to threaten witnesses – the rationale repeatedly cited for refusing to release him on bond. “Franz Kafka would be shocked to learn that ‘imprison him now; present the evidence sometime in the future’ appears to be the State’s reality in Fulton County,” Gunna’s lawyers wrote.
BRIDGERTON MUSICAL CASE ENDS IN SETTLEMENT – Netflix reached a confidential agreement to end a copyright lawsuit it filed against Emily Bear and Abigail Barlow, the creators of The Unofficial Bridgerton Musical. The case, filed in July, accused the duo of “blatant infringement,” claiming they piggybacked on “the creative work and hard-earned success” of Netflix’s smash hit period drama “to build an international brand for themselves.” As is typical, terms of the settlement were not disclosed.
“HALLMARKS OF A PONZI SCHEME” – Fat Joe filed an eyebrow-raising lawsuit against his longtime accounting firm, BDO USA, and two of its employees, claiming they stole millions of dollars from him in a “brazen” scheme. When he noticed “a slew of irregularities and fraudulent activity” and demanded answers, the rapper says the firm “ignored his pleas or made up stories to cover their trail.” But Joe says he eventually figured it out: “Plaintiffs are the target of a fraudulent scheme that BDO and [and the two employees] have been orchestrating for years and that has resulted in millions of dollars in damages.”
R. KELLY’S LATEST LEGAL LOSS – A Brooklyn federal judge said R. Kelly would be required to pay hundreds of thousands of dollars in restitution to two victims to cover treatment for their sexually-transmitted diseases and psychological trauma. The order, which left the final total undecided, came in New York, where Kelly was convicted last year on racketeering and sex trafficking charges and sentenced to 30 years in prison in June. It’s the latest setback for the disgraced singer, who was also convicted last month in Chicago on separate charges relating to child pornography.
SHAKIRA HEADED FOR TAX EVASION TRIAL – A Spanish judge approved a trial for pop singer Shakira, who stands accused of failing to pay 14.5 million euros ($13.9 million) in taxes on income earned between 2012 and 2014. Shakira has repeatedly denied any wrongdoing and rejected a deal with authorities to avoid going to trial, but prosecutors are seeking an eight-year prison sentence and a hefty fine if she is found guilty of tax evasion. A date for the trial has not yet been set.
META RIPS ‘VAGUE’ MUSIC LAWSUIT – Meta asked a federal judge to dismiss a lawsuit that claims Facebook and Instagram stole hundreds of songs from a Swedish production music label called Epidemic Sound, arguing that the case is so vague that the social media giant isn’t even quite sure what it’s accused of doing wrong. Filed back in July, the case accused Meta of using nearly 1,000 songs without the proper licenses and demanded an eye-popping $142M. But in their response this week, Meta said Epidemic’s “bluster” could not make up for a complete lack of specifics: “Such vague assertions and glaring omissions keep Meta in the dark,” the company’s lawyers wrote, saying they had been “left to try to guess” what they had done wrong.
YOUTUBE RIPPER IS ILLEGAL, COURT SAYS – A federal judge ruled that Yout – a website that allows users to download music from YouTube – violates the Digital Millennium Copyright Act by helping its users “circumvent” the platform’s digital encryption technology. Yout filed the lawsuit itself, suing the RIAA to prove that the service was legal under the DMCA. But the judge sided with the music industry’s interpretation of the law, saying Yout had “clearly” run afoul of the statute’s provisions. An appellate battle looms next, where Yout’s attorneys think the company will have better luck.
Other top stories this week…
-Pandora Media filed a new set of antitrust counterclaims in the ongoing litigation over comedy royalties, this time against comedian Lewis Black and Spoken Giants. The streamer already brought such counter-accusations against Word Collections and other comics who have sued over the issue. (Bloomberg Law)
–Tory Lanez was hit with a lawsuit that claims he ran into a car driven by a pregnant woman and then left the scene of the accident. His lawyers say the whole thing is made up and that the couple simply looked up Tory’s license plate to try and nail him to the case. (TMZ)
-A federal judge ruled that an insurance company doesn’t need to cover South by Southwest in litigation filed by ticket holders seeking refunds after the 2020 festival was canceled as a result of the COVID-19 pandemic. (Law360)