Final testimony in Ed Sheeran plagiarism trial: how 'Let's Get It On,' 'Thinking Out Loud,' and 'Georgy Girl' share a groove

• Ed Sheeran insists his 2014 hit, 'Thinking Out Loud,' doesn't plagiarize Marvin Gaye's 'Let's Get It On.'
• Deliberations in the federal copyright trial began briefly on Wednesday in Manhattan.

Deliberations began Wednesday in the "Let's Get It On" plagiarism trial in federal court in Manhattan, where singer-songwriter Ed Sheeran has insisted for a week that his 2014 hit, "Thinking Out Loud," does not copy the 1973 Marvin Gaye soul masterpiece.

The seven-member jury resumes deliberations Thursday morning. But before they could start weighing the fascinating case — which asks, in essence, whether a song's chord pattern and harmonic rhythm, essentially its "groove," can be stolen — "Georgy Girl" reared its, or her, decidedly uncool head.

The cornball, 1966-chart-topping pop song was debated by both sides in court as Sheeran watched from the defense table and the heirs of "Let's Get It On" co-composer Ed Townsend watched from the plaintiff table.

As improbable as it may sound, Townsend's soulful "Let's Get It On," Sheeran's earnest "Thinking Out Loud," and the breezy, cheesy Australian import "Georgy Girl" all share the same groove, according to Sheeran's expert musicologist.

All three songs use the same common four-chord progression — known as the I, iii, IV, V progression in music parlance. And in all three, the chords are struck with the same jittery, "anticipated" rhythm, with the second and fourth chords hitting before, not on, the beat.

There's a caveat to that odd, three-way comparison, Sheeran's musicologist, Dr. Lawrence Ferrar, told jurors just before testimony wrapped Wednesday.

You can't go by the version of "Georgy Girl" that infected US radios in the late 60s, he explained.

Rather, it's the 101 Strings Orchestra version, and the Boston Pops Orchestra version, of "Georgy Girl" that use the exact chord progression and rhythmic anticipation as "Let's Get It On," Sheeran's expert said.

Leaving aside the strangeness of having one of the most soulful songs in the Western canon, "Let's Get It On," compared in open court to two easy-listening, symphonic renditions of "Georgy Girl," the comparison is highly significant to the plagiarism defense.

Sheeran's expert testified Wednesday that he found four songs — "Georgy Girl" and three others — that used that exact chord-rhythm combination, and did so before "Let's Get It On" did.

One was the 1962 Motown hit by The Contours, "Do You Love Me (Now That I Can Dance)," which later generations know from the movie "Dirty Dancing."

But the others — there's also a 1966 cover of the Temptations' "Since I Lost My Baby" — are "highly obscure" recordings, plaintiff attorney Patrick R. Frank, pointed out in cross-examining Sheeran's musicologist Wednesday.

Sheeran's musicologist had to go to "extreme lengths," scraping the bottom of the obscurity barrel, to find only four examples of the chord-rhythm pattern shared by "Let's Get It On" and "Thinking Out Loud," Frank argued.

"Doesn't that suggest that 'Let's Get It On' is rather novel, or unique?" and doesn't that bolster the plagiarism case, the Townsend lawyer asked Sheeran's musicologist.

The musicologist fought back hard against the word "obscure."

"Georgy Girl" has appeared "on more than one '101 Strings' albums," he protested, an almost comic anger rising in his voice.

"It's still available on two different albums" by the orchestra, he insisted. "You can call it obscure, but it is not."

Ultimately, though, one can't plagiarize something that is not itself original, so "It doesn't matter," Sheeran's expert said, finally letting go of the question of "Georgy Girl's" obscurity.

"What matters," he said — using an acronym for "Let's Get It On" — "is that 'LGO' did not do it first."

Townsend's side is seeking a finding of copyright infringement and unspecified monetary damages from Sheeran, his label Warner Music Group, and Sony Music Publishing. They also seek to bar Sheeran from performing or recording "Thinking Out Loud" ever again.

"Use your common sense," Townsend attorney Ben Crump told the jury in closings. "These songs sound substantially similar" in melody, and in how they combine the rhythm and progression of their chords, he said.

Their side's musicologist, Dr. Alexander Stewart, even put a number on it, telling jurors in his expert testimony that 70 percent of "Thinking Out Loud" is derived from "Let's Get It On."

Sheeran's side counters that while the artist had heard of Gaye's song, it was not an influence. "Thinking Out Loud" uses chords and rhythms that are commonplace "building blocks" of popular music, his side's musicologist, Ferrara, told jurors.

US District Court Judge Louis Stanton's spoken instructions to the jury included telling them that Townsend's side "must prove by a preponderance of the evidence" — meaning that it's more likely than not — "that Sheeran actually copied and wrongfully copied 'Let's Get It On.'"

"Independent creation is a complete defense," the judge instructed, "no matter how similar that song is."

Though it was after 5 p.m., the judge told the jury to start their deliberations.

"It's good for them to get a little bit of deliberations in," he explained to the audience, after the door closed behind the jurors.

"It ties them together as a unit, and makes them more looking forward to reconvening tomorrow morning," he said, quipping, "We're not going to spend the night."

Hardly 10 minutes later, the jury sent out a note, and was brought back into the jury box.

"We want to go home for the day," the judge said, reading to them from their note. "Can we go home?" he read.

"The answer is yes," he told them.

Deliberations resume at 10:00 a.m. If Sheeran is found liable for copyright infringement, the same jury will then determine how much he, his label, and his publisher must pay in damages.