By Cara Salvatore

Law360 (October 6, 2020, 10:28 PM EDT) -- It will be "virtually impossible" for Ed Sheeran to participate in an upcoming copyright trial regarding a famous Marvin Gaye song while travel from the U.K. to the U.S. is at a standstill during the pandemic, the singer's lawyer told a New York federal judge.

Sheeran is facing a Nov. 12 trial date over allegations that his hit single "Thinking Out Loud" is too similar to the copyrighted sheet music for Gaye's tune "Let's Get It On." But that date would be nigh impossible for Sheeran and his U.K.-based people to make, Sheeran's lawyer Donald Zakarin of Pryor Cashman LLP told U.S. District Judge Louis Stanton in a letter Friday.

With the coronavirus still spreading rampantly and much travel restricted, Sheeran and other key defense witnesses "are not allowed to even travel to the United States from the U.K. Thus, it is not a matter of quarantining in New York for 14 days before trial. It is a matter of actually not being able to get here from the United Kingdom," Zakarin wrote.

Sheeran's accusers, the heirs of "Let's Get It On" co-writer Ed Townsend, say the Sheeran tune is similar to the sheet music deposited with the U.S. Copyright Office in July 1973. Jurors will not hear the well-known recorded version, Judge Stanton has ruled.

Theoretically, to get to New York, Sheeran and his U.K. lawyers and U.K. security detail would first have to go to a country from which travel to the U.S. is allowed, quarantining in that country for at least two weeks. Then they'd have to come to the U.S. and quarantine for another two weeks, Zakarin said. That would mean they would have to leave for the intermediate country within a week.

He said it would be far preferable to reschedule the trial for the spring and keep all other deadlines in place. Jury selection is currently set for Nov. 10 and openings for Nov. 12.

Zakarin did not mention the possibility of remote or online proceedings.

Meanwhile, Judge Stanton ruled Monday that the trial will be split into a liability phase and then, if needed, a damages phase.

"During the first segment of the trial, there is to be no reference, by proof, argument, comment or in any other manner, to the amount of damages or any measurement of the harm claimed to have been inflicted by the defendants' infringement," the judge said.

In March, Judge Stanton ruled that the rights owned by Sheeran's accusers cover only the "deposit copy" of the song's sheet music given to the Copyright Office in 1973, not the recorded version most people know.

"The Gaye sound recording contains many elements … which do not appear in the simple melody of the deposit copy," the judge wrote. "These additional elements — at least some of which appear in Think Out Loud in more or less similar form — are not protected by copyright, because they are not in the deposit copy."

The ruling was the direct result of a decision earlier this year by the Ninth Circuit on Led Zeppelin's "Stairway To Heaven." In that decision, the appeals court said sheet music is not legally equivalent to recordings. "The 1909 Copyright Act did not offer protection for sound recordings," the Ninth Circuit wrote.

Sheeran was sued in 2016 by Kathryn Townsend Griffin and other heirs of Townsend, who co-wrote the song with Gaye. The suit said Sheeran's 2014 song, which eventually hit No. 2 on U.S. charts, was "strikingly similar" to the famous 1973 song.

Even Sheeran has acknowledged the similarities. In a now-famous YouTube clip, the pop star toggled between the two songs during a live concert.

Representatives for the parties were not immediately available for comment.

The Townsend heirs are represented by Patrick Frank of Frank & Rice PA.

Sheeran is represented by Donald Zakarin of Pryor Cashman LLP.

The case is Griffin et al. v. Sheeran et al., case number 1:17-cv-05221, in the U.S. District Court for the Southern District of New York.

--Additional reporting by Bill Donahue. Editing by Haylee Pearl.

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