Ed Sheeran Must Face Trial Over Accusation That He Copied Marvin Gaye Song

A federal judge says Ed Sheeran must face a jury trial over whether he stole key pieces of his “Thinking Out Loud” from Marvin Gaye‘s iconic “Let’s Get It On,” rejecting the British singer-songwriter’s efforts to toss out the long-running copyright case.

Sheeran’s attorneys argued that the lawsuit – filed by an entity that owns a partial stake in Gaye’s famous 1973 song – was invalid because the combination of simple elements the singer allegedly stole was not unique enough to be covered by a copyright in the first place.

But in a ruling on Thursday, Judge Louis 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.

The decision sets the stage for a blockbuster trial at a Manhattan federal courthouse at some point in the future, though a date has not yet been set. An attorney for Sheeran declined to comment on pending litigation.

Sheeran is currently well-versed in copyright law: He recently defeated a similar lawsuit in the U.K. that claimed he stole his chart-topping 2017 hit “Shape of You.” After that case ended, he told fans that “lawsuits are not a pleasant experience” and he hoped to avoid “baseless claims” in the future.

But he has long been dogged by questions of whether “Thinking Out Loud” – which spent 51 weeks on the Hot 100 after it was released in 2014 – borrowed too much from “Let’s Get It On.” Sheeran did himself no favors in late 2014, when he was captured on stage at a concert toggling between the two songs to amuse the crowd.

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 songwriter. They cited a number of other songs, including “Since I Lost My Baby” by The Temptations, that featured similar aspects.

For their part, 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 protection.

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.

Notably, the judge separately also ruled Thursday that Sheeran’s concert profits would be fair game as damages if he’s found to have infringed “Let’s Get It On.”

Gaye’s heirs became famous when they successfully sued Robin Thicke and Pharrell Williams over allegations that “Blurred Lines” infringed “Got to Give It Up.” But they have no involvement in the case filed 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. Several of Townsend’s other heirs have filed a separate case over their stake, which is also expected to go to trial at some point.

Following the decision, Pullman said in a statement to Billboard that he was “pleased” with the ruling, particularly the aspect about Sheeran’s concert profits. He said he “looks forward to more success in this case which involves the largest copyright infringement in history.”