May 08, 2023 | Law360 | 1 minute read

A Manhattan federal jury recently determined that Ed Sheeran’s song “Thinking Out Loud” did not copy from Marvin Gaye’s “Let’s Get It On” in a long-running copyright case.

During the trial, Sheeran pulled out a guitar on the stand and sang portions of his Grammy-winning 2014 song to demonstrate how it differs from Gaye’s Motown classic, displaying for the jury that he is talented enough to succeed without copying.

Bracewell’s Jonathon Hance explained to Law360 how this strategy gives lawyers fodder to argue their client is far more than a “hack that just stole a great’s material.”

Trial performances, however, do not always guarantee a successful outcome. Hance said that pulling out an instrument on the stand can be dangerous if it makes the witness appear arrogant. “If the playing comes off as, ‘I’m greater than you, let me really show you what it’s like,’ then it could backfire.”

Luckily for Sheeran, Hance didn’t think hubris would be a problem for the British singer-songwriter. “That doesn’t seem to be his personality,” added Hance.