He insisted there was no borrowing from “Let’s Get It On” and played an acoustic guitar in the witness box to show that the chord progression at the center of the two tunes was similar, but not identical.
In “Thinking Out Loud,” he testified, the second major of the four chords in the progression, he rejected the suggestion of Alexander Stewart, a composer from the University of Vermont hired by the plaintiffs, that it sounded like a minor one. “Let’s get to it.”
“I know what I’m playing on the guitar,” Mr. Sheeran said. “It’s me playing chords.”
Mr. Sheeran, Mr. Stewart’s voice mocked the analysis of the melody – which included an example where some notes were changed – as “guilty”.
How a jury can hear both songs is a quirk of copyright law. In this case only the basic compositions for the two songs – the lyrics, melodies and music that could be noted on paper – were not their recordings. For older songs like “Let’s Get It On”, copyright is limited to the sheet music or “deposit copy” originally submitted to the United States Copyright Office. In “Let’s Get It On,” that notebook was skeletal.
That means the jury never heard Kay’s original record, which went to No.1 in 1973. Instead, defendants computer-reproduced what appeared on the deposition copy and provided a robotic voice rendering of the lyrics, such as “now.” You feel like I do, baby, then come on, let’s get it on. A studio recording of Mr. Sheeran’s song was heard several times.
One of the jurors, Sophia Neese, 23, said after the trial that “the song we’re allowed to hear” and the “deposit copy” were key pieces of evidence in the jury’s decision.
