The Copyright in songs II – Ed Sheeran copyright case postponed pending Led Zeppelin ruling, but Katy Perry found liable for plagiarism

May 2020

COPYRIGHT: The ongoing litigation between Ed Sheeran and Ed Townsend has now been postponed pending the outcome of the ‘Stairway To Heaven’ litigation.


Sheeran was sued in 2016 over allegations that his 2014 hit ‘Thinking Out Loud’ lifted “melody, harmony and rhythm compositions” from the Marvin Gaye song ‘Let’s Get It On’. The lawsuit was filed by the estate of Townsend, who co-wrote the 1973 Gaye classic – with another Gaye track, ‘Got to Give It Up‘ already at the centre of another major copyright case, the ‘Blurred Lines’ litigation.

The Ninth Circuit appeals court covers the Western states of America, and whilst the Sheeran v Townsend case  had been filed in New York, Judge Louis L Stanton has acknowledged that the appeal judges will be considering some copyright technicalities that are very relevant to the ‘Thinking Out Loud’ action, even if not binding,  and concluded that to proceed with the Eds case in “wilful ignorance” of their conclusions would be “folly”.


According to Law360, the New York judge mused that “whatever the Ninth Circuit says, it’s going to be damned educational” although the Led Zeppelin case may then proceed to the US Supreme Court. Judge Stanton acknowledged that that was a further possible outcome and if that happens, he might ultimately postpone the Sheerhan case again, because any precedent(s) set in a Supreme Court ruling would be binding on his court. 


In a second major case, a jury has now ruled that the Katy Perry song Dark Horse does plagiarise a Christian rap song. After two days of deliberations, the jurors concluded that Perry’s team had likely heard 2008 release ‘Joyful Noise‘ before writing ‘Dark Horse’, and that the latter was sufficiently similar to the former to constitute copyright infringement.


Both producer Dr Luke, a co-writer on Perry’s hit and Perry herself said they had never heard of ‘Joyful Noise’ nor heard of the artist behind it, the rapper Flame, real name Marcus Gray – before they started work on their song and recording. Gray’s team argued that there had been many opportunities for Perry and her co-writers to to have heard ‘Joyful Noise’ and argued that whilst the copying may not have been deliberate,  her team had subconsciously infringed the earlier work. Gray’s legal team also also pointed to the similarities between the two songs – each share a distinct musical phrase consisting of four C notes followed by two B notes. Perry’s legal team argued that this was a very common musical phrase that couldn’t possibly be protected by copyright. Luke added that if the court did indeed decide that a musical phrase of this kind enjoyed copyright protection, it could set a dangerous precedent that would impede the music making process.


They’re trying to own basic building blocks of music, the alphabet of music that should be available to everyone,” said Katy’s lawyer Christine Lepera during her closing arguments in court last week, but the jury has accepted that this was copyright infringement. The case now goes to a penalty phase, where the jury will decide how much Perry and other defendants owe for copyright infringement.  Jurors found all six songwriters and all four corporations that released and distributed the songs were liable, including Perry and Sarah Hudson, who wrote the song’s words, Juicy J, who wrote the rap he provided for the song. Other defendants found liable included Capitol Records as well as Perry’s producers: Dr. Luke, Max Martin and Cirkut, who came up with the song’s beat.


UPDATE on developments in the Katy Perry case on CMU Daily here  https://completemusicupdate.com/article/joyful-noise-makers-now-seek-their-share-of-the-41-million-made-by-katy-perrys-dark-horse/

https://www.wipo.int/wipo_magazine/en/2015/05/article_0008.html

https://www.bbc.co.uk/news/newsbeat-49161916

And COMMENT here 

https://www.washingtonpost.com/opinions/2019/08/02/how-katy-perry-could-have-won-dark-horse-lawsuit/?utm_term=.36ad1f0dfc5a

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