Law360 (October 16, 2020, 3:04 PM EDT) -- A Manhattan federal judge has postponed a looming copyright trial over whether Ed Sheeran's song "Thinking Out Loud" infringed Marvin Gaye's iconic "Let's Get It On," citing a strain on judicial resources amid the coronavirus pandemic.
In an order Thursday, Judge Louis Stanton said the trial — pitting Sheeran against the heirs of "Let's Get It On" co-writer Ed Townsend — would be "deferred" from a Nov. 12 date to "next spring."
"At present there is no prospect of certainty that the trial will go forward as scheduled," Judge Stanton wrote. "On the contrary, the number of courtrooms renovated for trials is small, criminal cases have priority and trial-ready civil cases are fed in to gaps left by unexpected pleas. On the other hand, it seems reasonable to expect that conditions will have improved by next spring."
The postponement came two weeks after attorneys for Sheeran warned Judge Stanton that it would be "virtually impossible" for the pop star and other witnesses to travel from the U.K. to participate in the trial due to the COVID-19 pandemic.
On Friday, an attorney for Sheeran told Law360 that he and his clients were ready to head to trial when conditions improve.
"I want to be clear that our clients very much want to try this case and put what we consider a baseless infringement claim behind them," said Donald Zakarin of Pryor Cashman LLP. "We will be ready to proceed as soon as there is more certainty about obtaining a jury and the travel restrictions that have made it largely impossible for our client and U.K. witnesses to attend trial are behind us."
Patrick Frank of Frank & Rice PA, lead counsel for the plaintiffs, said he and his clients "understand the need for caution in these uncertain times."
"The delay, however, will not diminish the Townsend family's resolve to obtain justice for what can only be described as outright theft of 'Let's Get It On' at the hands of Mr. Sheeran," Frank told Law360.
The lawsuit against Sheeran was filed in 2016 by Kathryn Townsend Griffin and other heirs of Townsend, who co-wrote the song with Gaye. The suit said Sheeran's 2014 "Thinking Out Loud," which eventually hit No. 2 on U.S. charts, was "strikingly similar" to the famous 1973 song.
Even Sheeran has acknowledged the similarities between "Let's Get It On" and "Thinking Out Loud." In a YouTube clip, the pop star toggled between the two songs during a live concert. In January 2019, Judge Stanton ruled that a jury would have to decide the case.
But the upcoming trial has already been delayed once.
Last year, Judge Stanton put the case on pause to wait for the Ninth Circuit to rule on a case involving Led Zeppelin's "Stairway to Heaven." The judge hoped that ruling would clear up whether Sheeran's accusers could play Gaye's famous recorded version of the song during the trial, even though their copyright technically covered only simple sheet music.
In March, the Ninth Circuit ruled that such copyrights are strictly limited to the bare-bones version. Two weeks later, Judge Stanton cited the ruling and said he would likely ban Sheeran's accusers from playing the famous recorded version at trial.
A second case against Sheeran, filed by another entity that owns a partial stake in the "Let's Get It On" copyright, is also pending. In that case, Structured Asset Sales is citing new copyright registrations — a creative effort aimed at allowing jurors to hear the famous song despite Judge Stanton's decision to the contrary.
That case, filed in June, is only in the early stages and is awaiting an order on a motion to dismiss.
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.
--Editing by Stephen Berg.
Update: This story has been updated with a statement from the plaintiffs.
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