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Testimony concluded in Ed Sheeran’s copyright infringement lawsuit at the end of the day’s hearing on Wednesday, as the judge sent the Manhattan jury into deliberation with a pointed warning: ‘Indie creation is a complete defense no matter how similar that song is.”
The instructions from U.S. District Court Judge Louis Stanton may have left the bar high in the minds of the jury as to how much evidence plaintiffs’ attorneys needed to establish to prove that Sheeran and his co -authors actually copied Marvin Gaye’s “Let’s Get It On” when they wrote the pop hit “Thinking Out Loud.”
According to Insider, Stanton told jurors that attorneys for Gaye’s co-writer Ed Townsend’s heirs had to “prove by a preponderance of evidence…that Sheeran did indeed copy and wrongly copy ‘Let’s Get It On'” – per opposition to the incidental and negligible similarities advanced by Sheeran’s lawyers.
Even though the clock had passed 5 p.m., the judge instructed the jurors to immediately begin discussing the case behind closed doors, saying “it’s good for them to have a little deliberation” and saying reassuring everyone involved that “we’re not going to spend the night.” The jurors’ time together lasted well under an hour before they were dismissed and asked to return Thursday morning.
In her closing arguments, Sheeran’s attorney, Ilene Farkas, recalled the other party’s claim that the singer’s concert medley of the two songs constituted “a smoking gun” and “a confession”. Said Farkas, according to the New York Post, “He did a mashup one night. Is it the confession of a plaintiff, his irrefutable weapon?… To put it simply: the plaintiff’s “irrefutable weapon” fired blanks.
“Not only do we have a smoking gun, but we have bullets for this smoking gun,” said Ben Crump, an attorney for the plaintiffs, as both sides did their best to completely exhaust the metaphor.
There were some fun moments on the final day of testimony, reports suggest. After Sheeran previously said in court that ‘Thinking Out Loud’ sounded more like Van Morrison’s style than Gaye’s tune, comparisons turned less noble on Thursday as a debate erupted over a different song which had several different versions played in the courtroom: the mellow 1960s hit “Georgy Girl.”
Dr. Lawrence Ferrara, an expert musicologist called in by Sheeran’s team to counter that brought earlier by plaintiffs’ attorneys, said “Georgy Girl” shares a similar chord progression and “anticipated” rhythm with “Let’s Get It On” and “Thinking Out Loud”, while having been released years before either. He played Muzak-style versions of the single performed by the Boston Pops Orchestra and 101 Strings Orchestra to bolster his arguments.
Ferrara also cited two other songs that share the chord progressions that are in the running: the early ’60s Contours hit “Do You Love Me (Now That I Can Dance)” and a lesser-known cover of “Since I Lost” from the Temptations. My baby.” The attorney for Townsend’s heirs countered that progress must indeed be rare if Ferrara had to resort to obscure documents to argue the case.
“Doesn’t that suggest that ‘Let’s Get It On’ is rather new or unique?” asked attorney Patrick R. Frank during his cross-examination of the musicologist, saying that Ferrar must have gone to “extreme lengths” to find similar songs to quote. Ferrara replied that, for fans of classic pop, “Georgy Girl” isn’t obscure, but said the point was moot anyway: “What matters is that ‘LGO’ (‘Let’s Get It On’) didn’t do it first.”
Before the case was left to the jury, Farkas told jurors that the similarities in chords or rhythm – in relation to melody and lyrics – were “the letters of the alphabet of music… They are basic elements of music that songwriters should be free to make now and forever. use, or all of us who love music will be poorer for it,” Farkas said.
Keisha Rice, another attorney for the plaintiffs, argued in return that the case hinged on “how these common elements were uniquely combined.”
During Sheeran’s final turn at the helm a day earlier, he said if the plaintiffs prevailed in their bid to not only secure a financial victory but also prevent him from performing his hit song again , it would have a chilling effect on all songwriters, and possibly cause him to quit. “If that happens, I’m done – I’m done,” he said.
Sheeran had said during Tuesday’s proceedings that he considered the testimony of the plaintiffs’ musicologist, Alexander Stewart, to be irrelevant. “I think what he’s doing here is criminal,” the singer said.
In Wednesday’s closing statement, Crump told the jury not to be “charmed” by the pop star and said his threats to leave the company if he lost were pure courtroom theater. “It’s just a threat to play with your emotions,” Crump said, according to the Post, adding that he could “promise he won’t.”
“Thinking Out Loud” won the Grammy for Song of the Year in 2016. Townsend’s heirs filed their copyright suit about six months later; between the pandemic and the usual court delays, he was only tried at the beginning of last week.