A federal judge refused to toss the case out, ruling that a jury might decide that “Thinking Out Loud” infringed Gaye’s iconic “Let’s Get It On.”
After he was hit with the current lawsuit in 2018, Sheeran’s lawyers argued that the elements he allegedly took from the Gaye’s song – a chord progression and the harmonic rhythm – were too commonplace to be the exclusive property of any one song writer. They cited a number of other songs, including “Since I Lost My Baby” byFor their part, Sheeran’s accusers admit that those elements, by themselves, are “commonplace and unprotectable.
In Thursday’s ruling, Judge Stanton said that argument would need to be decided at trial. He said both sides had presented dueling experts to support those arguments, and that only a jury could sort out which was right. “There is no bright-line rule that the combination of two unprotectable elements is insufficiently numerous to constitute an original work,” the judge wrote “A work may be copyrightable even though it is entirely a compilation of unprotectable elements.”
The copyright protection afford to such songs is very weak, but Judge Stanton said a jury might still be able to find that Sheeran’s song was close enough that it infringed Gaye’s track.
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