Ed Sheeran Copyright Trial Shows System is 'Broken': Lawyer

Ed Sheeran is to stand trial in a $100 million case over copyright infringement, but one lawyer believes the system is "broken."

The popular English singer has been ordered to stand trial over allegations he copied his 2014 hit song "Thinking Out Loud" from Marvin Gaye's 1973 classic "Let's Get It On."

Last week, Judge Louis Stanton in Manhattan said there was "no bright-line rule," and that a jury trial would be needed to resolve the issue, Billboard reported.

"There is no bright-line rule that the combination of two unprotectable elements is insufficiently numerous to constitute an original work," Judge Stanton said. "A work may be copyrightable even though it is entirely a compilation of unprotectable elements."

The issue started in 2016 with the family of the late Ed Townsend, the co-writer of "Let's Get It On," suing Sheeran. The case was ultimately dismissed the following year.

Then in 2018, Structured Asset Sales, which controls a one-third stake in Townsend's copyrights, per Billboard, filed a suit for $100 million.

Structured Asset Sales claims that "Thinking Out Loud" uses melodic, harmonic, rhythmic, instrumental and dynamic elements taken from Gaye's song.

Ed Sheeran, Marvin Gaye
British singer Ed Sheeran performs at the Platinum Pageant in London on June 5, 2022 as part of Queen Elizabeth II's platinum jubilee celebrations and American R&B, Funk, and Soul musician Marvin Gaye (1939 - 1984) performs onstage during the 'Sexual Healing' tour at Radio City Music Hall, New York, New York, May 19, 1983. Getty Images

One lawyer feels that this case is proof that the American intellectual property system is not fit for purpose, and that artists should have access to "algorithmic-based tests" rather than a jury trial to resolve such disputes.

"The Ed Sheeran trial over Marvin Gaye's copyright claim is yet another example of how our nation's intellectual property system is broken," Andrew M. Lieb, managing partner of Lieb at Law, P.C., with a practice focus on litigation and compliance, told Newsweek.

"How does an artist know when similar works are commonplace enough to not infringe? In the era of technology, it's time for there to be an algorithmic-based test so artists know when works infringe rather than leaving it to filing procedures and the jury," he added.

"Creativity needs room to breathe and without a clear answer to what is permissible, and exposure of $100 million in damages in this case, artists are going to be afraid to take risks unless something changes."

Conversely, attorney David M. Schwartz of SchwartzDefense.com believes that the judge made the correct ruling because "whether or not a piece of work is original to that artist is in the eyes of the finders of fact, which in this case is the jury and not a judge."

"The case needs to go in front of a jury so they can determine whether the work is original or copied from Marvin Gaye," Schwartz told Newsweek.

Meanwhile, Frank Salzano, managing partner of New York-based entertainment law firm Salzano, Lampert & Wilson, LLP, said he is not surprised the judge is allowing the case to go to trial for a jury to determine whether there is liability—because "while artists and songwriters have always 'borrowed' from their predecessor musicians, copyright laws are very strict and even the smallest use without the owner's permission amounts to infringement."

Sheeran previously won a plagiarism lawsuit over the hit song "Shape of You" and ​​called for an end to pop plagiarism suits.

"It's really damaging to the songwriting industry," the singer said in a video posted to Twitter in June. "There's only so many notes and very few chords used in pop music. Coincidence is bound to happen when 60,000 songs are being released every day on Spotify. That's 22 million songs a year. There's only 12 notes that are available."

Newsweek contacted Sheeran's representatives for comment.