Wednesday, 23 January 2019

The 1709 Blog welcomes new intern Akshat Agrawal

Akshat Agrawal
Every now and then The 1709 Blog team gets a refresh! 

We are delighted to announce that for the next 6 months we will be joined by a new intern, Akshat Agrawal (Jindal Global Law School, India).

Here's Akshat's profile and experience in his own words.
I am Akshat Agrawal and I am currently pursuing my undergraduate BA LLB degree from Jindal Global Law School, India. I am in my penultimate year.
I was a part of the team that represented Jindal at the Oxford IP moot 2018, and am the coach for the team representing in 2019. 
My core research interests lie in substantive copyright law and the core concepts which drive the threshold of copyrightability. Most of my research has been with respect to copyrightability of unconventional works, and the interface of tech and copyright (AI!!)
I am a huge advocate of author's rights, specifically singers mainly because of being from a musical background and the ground level issues we face. 
P.S. My artist name is 'raagasforsolace'. Check my music out. 
More about me on LinkedIn here.

Monday, 14 January 2019



In a case being tagged as “one of the most important battles” in YouTube history, Mars Argo (Brittany Sheets) had alleged identity and copyright infringement against Corey Mixter and Moriah Pereira (commonly known as Poppy). The grounds of the allegation mostly related to a video put up by the duo, which was termed as a “Mars Argo knockoff” by Sheets. The core of the dispute (as far as copyright and image rights are concerned) rested upon the claims stating an intimation of Mars Argo’s identity, likeness, expression of ideas, sound style and certain other distinctive elements of Argo’s voice and look (dyed hair to a specific Platinum color). It was claimed by Sheets in the lawsuit, that the duo tried to emulate the look as well sound style-associated with her and tried to pass themselves as her for commercial purposes. This law suit has however reached an ugly settlement (details can be found here) where the parties have agreed to never speak to or of each other and where all the rights to the work and identity have been settled to remain with Sheets. According to us however, a claim for fair use is bound to exist here, as there was no substantial reproduction of the work per say, and such a restrictive interpretation of a parody can have major ramifications on the YouTube creator community. Even in the case of H3H3 v. Matt Hoss, fair use was upheld on a YouTube upload which was criticising or came into the category of a parody. Similarly, herein as well merely the style or the way the content is expressed has been appropriated rather than the expression itself. The intricacies of the matter are not present in the public domain and hence an accurate analysis would be tough to construe, however I would like to point out to the case of Campbell v. Acuff Rose (1994) which bought in the concept of “parody as an obvious claim of transformative and fair use”. Justice Souter in that case had held that, parody, like comment or criticism, is bound to be covered under fair use and Section 107 of the US Copyright Act. It is an amalgamation of reference and ridicule which has been held to be permissible as a transformative element. Further, the court had coined the “conjure up” test wherein it was established that the threshold to deny a finding under fair use, in the case of a work which was a parody, was when the parodist appropriated a greater amount than necessary to ‘recall or conjure up’ the object of the parody. Hence, merely appropriating the sound style or look won’t qualify as infringing content per say, as long as substantial similarity is sufficiently established.


As reported in Spanish by Cointelegraph, the Argentina based NEM foundation signed an MOU with a local trade union of journalists to work upon building a blockchain based solution for copyright protection. The issues which are sought to be countered through this are that of content theft and royalty paying failures amongst others. It has been developed to regulate the flow of content and enforce licensing rights effectively. A similar arrangement was recently entered into for a similar purpose by Associated Press (AP), to track the use of content. AP had entered into such an agreement with CIVIL, to use its network to track the use by potentials of created content. The main aim of the same is to keep a check on the chain of value and ensure adequate receipt of credit and compensation on the event of exploitation and use of a copyrighted work. The usage of block chain technology has been hailed to be effective in keeping track of how the information is used and avoid use for illicit purposes like Fake News propagation. Control over all kinds of information created, with the creator, has been argued to be the basic goal of inculcation and usage of blockchain technology, particularly in journalism.

The method of operation of the same has been enunciated upon by the press secretary of the local Argentina based union of journalists – CISPREN, who states, “Authors will be able to upload their content to blockchain, ensuring authenticity. Further, presence of a QR code along with a digital signature will be additional safeguards in the case of a dispute.” An advantageous implication of the emergence of blockchain technology in the journalism domain obviously will be the presence of a “vigilant eye” for anyone violating copyright due to a permanent record of the work and the ability to track the usage of the work, as has been reported by the bitcoin magazine. However, certain anxious issues exist as well, with the evolution of technology and the incapability of law to address the various consequential problems associated with it. The law, is not in its current state, woke enough to accommodate to such technological usage and there is grave possibility of misuse. Due to the anonymous nature of blockchain based transactions, which are embedded in an immutable manner, there is a huge possibility of circulation of infringing content and mis-information. The option to exploit such technology is not merely limited to rightsholders but rather is accessible to infringers as well, and until regulation is at its paramount, there is a certain risk associated with the adoption of newer technological mechanisms. Certain questions like management of takedown requests, identification of location of infringing work in an immutable embedded world are being posed, which are imperative to be brainstormed upon before lauding the appealing usage of such technology.


The registration requirement is unique to the United States copyright enforcement and has been a topic of debate, in relation to its ambit, since long. There has been a split on the threshold requirement to fulfil “registration” amongst the circuits, with some preferring the “certified registration complete” approach (10th and 11th circuit) and some, the application approach, which is limited to merely applying (5th and 9th circuits). Even within the 6th and 7th circuits, there is no harmony in the view adopted and there has been a multitude of opinions flowing as to which is the most appropriate and intended one. The Copyright office has also shown its support towards the registration approach. It’s inclination towards the registration approach obvious, keeping in mind the profitability that follows from it. There is an expended approach mechanism, wherein the rightsholder can finalize upon a registration in under 5 days, upon the payment of a hefty 800$ per claim, over and above the regular application fee. The argument resorted to by the proponents of the registration approach is merely grounded on the literal rule of statutory interpretation, read on the provision which states,” no action for infringement can be instituted until registration of the copyright claims are made in accordance of the act.” This however goes against the creators’ interest and is a burdensome procedural flaw in the US copyright system.

This issue is finally being taken up the US Supreme Court, upon a certificate issue in the matter of Fourth Estate Public Benefit v. The Supreme Court too on 8th January, seemed divided on the interpretation with Justice Elena Kagen saying that the only way to be read the statute is to imply registration as registration being made and finalized conclusively. This was in support by Justices Sonia Sotomayor and Brett Kavanaugh and Chief John Roberts, however the Chief also acknowledged the technological development taking place resulting in faster infringing mechanisms and the problems associated with waiting for completion of registration. A purposive interpretation was also argued for by the amicus groups in the issue like the National Music Publishers association. In my opinion, in the current age of technological dynamism and the Copyright Act being drafted in 1976, waiting for a registration-based practice can result in validating infringement actions on an incidence of a lackadaisical conduct by the Copyright office. Further, there is a chance of exploiting the literal connotation of the provision by the Copyright office, in order to mooch of extra money. Hence, a harmonious purposive construction is imperative to effectively safeguard the rights of the shareholders especially in the realm of US Copyright law, wherein the threshold of copyrightability is a minimal modicum of creativity as compared to novelty in patent law.


India is known as the land of folk music because of the traditional association of music and lifestyle even within the diverse religious and sectoral groups present. An interesting question regarding the copyrightability of such traditional songs has been brought in before the Bombay High Court, which is set to decide this matter soon. Old songs which are sung in traditional community-based weddings have been argued to have been infringed by being included in a lyrical compilation, without the earlier author’s permission who had published the same earlier. The counter argument that has been raised is that these songs are traditional and not owned by any individual person. They are in the Public domain. In this light, I would like to get in the WIPO’s interpretation of the same. The WIPO has described the concept of Traditional Cultural expressions and has used it synonymously with the phrase “expressions of folklore”. It has defined it to mean productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community. These include verbal expressions such as folk tales, musical expressions such as folk songs and instrumental music.  They have defined traditional as- not “old” but rather an expression based upon tradition or associated with an indigenous or traditional society (based on location or community beliefs) and practiced in traditional ways. (WIPO Publication no. 489 (E), 2004). A specific expression of the same inculcating elements of originality or in a form of a compilation has although been held to be protectable due to involvement of sufficient skill and judgment, which is the threshold of originality. This doesn’t seem the case for lyrical infringements as the lyrics are always in the public domain and cannot be specifically changed in traditional works. “Traditional” implies a community economy, wherein authorship is not a central concern and is evolutionary in nature.

Hence, it can easily be held that a copyright or a monopoly right to exploitation cannot be claimed over lyrics of a traditional song that has been published, due to it being a generic element of a society and hence a mere idea rather than an original expression of the same. The court in the case at hand, although, needs to analyse the work wherein copyright is being claimed and examine whether, there are elements in the work which go beyond being traditional and generic, and fulfil the threshold of originality. Otherwise, a claim of copyright on an expression of a traditional song merely lyrically written, should ideally not be sustainable and there would be no infringement.


A certiorari has been filed in the United States Supreme Court, against the decision of the 9th Circuit case of Rentmeester v. Nike, (883 F.3d 1111 (9th Cir. 2018) wherein, it has been argued that the 9th circuits decision is problematic and creates a circuit split, by giving “photographs a thinner protection than any other art form”. It has been alleged that an evaluation which requires super-substantial similarity is to be conducted which goes against the 11th, 1st and 2nd circuit decisions which treat the individual elements of a photograph substantially protectable while evaluating the whole, rather merely the whole of the expression. The background of the case dealt  with 2 photographs involving Michael Jordan jumping in the style of ballet’s grand jete, with the ball in his left hand. However, the picture was taken from a different angle. This issue has been previously covered by the CopyKat in January 2015 and March 2018. The dispute in the 9th circuit case involved 2 photographers, however it brings up a highly important question of how to treat photographs in copyright law and the concept of art within it the law - and transformative art in the context of 'fair use'. In the case of Cariou v. Price, 714 F.3d 694 (2d Cir. 2013) , substantiality was evaluated on the basis of “character” and “aesthetics”. Similar questions have been asked in cases like Kienitz v. Sconnie Nation LLC, 766 F.3d 756 (7th Cir. 2014), however a conclusive determination of what is to be considered of substantial importance when evaluating similarity amongst photographs is yet to determined. The CopyKat has its eyes set. Will it be lighting choices or painter’s use of colours?, individual elements or the whole of a photograph?, superficial texture or imagery? It will be really interesting to see how the Supreme Court resorts to resolve this long standing question. In my opinion, there is no infringement in the case at hand as separate creativity was exercised on the part of both the fixers in terms of clicking the photograph and the instantaneous reactions irrespective of the subject captured. It’s not the subject pictured which is copyrightable rather the expression which comes out of the photograph. Until and unless, the same photograph is not reproduced, merely the subject which is fixed cannot be claimed a copyright on. The differentiating factor from music and other forms of art and a photograph is the creativity involved in the art of curating and the art on one hand and merely fixing it on the other. I aint undermining the skill, judgment and creativity involved in fixing and clicking a photograph, rather am appreciating the intuitive technique and fixation involved in it which differs inherently from person to person.  The CopyKat is highly excited to see what the Supreme Court opines of the same.


In the month of June 2018, Bethesda had brought in a copyright infringement suit over is videogame mobile title Fallout Shelter against Behavior Interactive and Warner Bros title Westworld. The main grounds alleged were based upon similar game design, art style, animations, features and other gameplay elements including various bugs being similar!! Notably even the source code in the resultant game was argued to be copied by Bethesda, claiming from an injunction from distribution and complete removal from the market. These allegations were completely denied then by Behavior Interactive. As reported by, the dispute has amicably been resolved and the CopyKat can peacefully enjoy both these games now.

This CopyKat by our new intern, Akshat Agrawal. Thank you Akshat! 

Saturday, 12 January 2019

AG Szpunar advises CJEU to rule that quotation exception is not limitless and that there is no fair use in the EU

After the late 2018 Opinions in Funke Medien [here] and Pelham[here], yesterday Advocate General Maciej (AG) Szpunar - IPKat's copyright person of the year 2018 - issued his Opinion in Spiegel Online, C-516/17 [background here], the third German referral asking the Court of Justice of the European Union (CJEU) to weigh in on, among other things, the interplay between copyright and other fundamental rights.

The Opinion, which is not yet available in English, advises the CJEU to rule that, among other things:
  1. The exception within Article 5(3)(d) of the InfoSoc Directive requires one to consider the purpose of the quotation at issue, and 
  2. Fundamental rights like freedom of expression do not allow EU Member States to go beyond the catalogue of exceptions in Article 5 therein to envisage new exceptions or even introduce a general fair use clause.

Volker Beck (photo by Mathias SchindlerCC-BY-SA)
As readers might remember, this referral originated in the context of litigation initiated by a German politician (Volker Beckwho, in 1988, authored a work about “sexual acts of adults with children”. The publisher apparently edited the manuscript without the author's consent and the resulting publication was, according to the author, a distortion of his views.

The original manuscript was found in an archive in 2013, and the author submitted it to several newspapers to demonstrate what he had actually written. Although he did not authorize publication of the manuscript or extracts thereof, he consented to newspapers linking to a statement he published on his own website.

The publisher also released a press report on its own portal, Spiegel Online, to support its view that the original manuscripts had not been distorted. To this end, the publisher included a link that allowed users to download both the original manuscript and the resulting publication. No link to the author’s website was provided.

The politician argued successfully at both first instance and on appeal that all this would amount to copyright infringement.

The case is currently pending before Germany's Federal Court of Justice, which has stayed the proceedings and asked the CJEU to clarify, among other things, how far the 'quotation' exception can go and what discretion EU Member States enjoy when transposing and applying relevant EU copyright directives.

The AG Opinion

AG Szpunar started by noting the relevance of freedom of expression (which has been recognized as a fundamental freedom since the 1789 Declaration of the Rights of the Citizen) and freedom of the press in a democratic society. However, the drafters of the 1789 Declaration itself were also aware of how freedom of expression could limit third-party rights and freedoms. As such, Article 4 therein provides that
 Liberty consists in being able to do anything that does not harm others: thus, the exercise of the natural rights of every man has no bounds other than those that ensure to the other members of society the enjoyment of these same rights. These bounds may be determined only by Law.
Freedom of EU Member States

This said, the AG tackled the question of Member States' discretion when transposing relevant exceptions within Article 5 of the InfoSoc Directive into their own laws, and noted how this is a similar issue to the one at stake inPelham.

Like in his Opinion in that case, AG Szpunar reiterated that - while EU Member States are free to determine the means for transposing relevant EU directives into their own laws - they are bound to achieve the objectives of those directives. In the case of the InfoSoc Directive, these include providing a 'high level of protection' of economic rights.

Article 5(3)(c)

The referral also includes a question concerning the exception within Article 5(3)(c) of the InfoSoc Directive, in particular whether the making available to the public of copyright works on the web portal of a press undertaking does not fall within its scope because it was possible and reasonable for the press undertaking to obtain the author’s consent before making his works available to the public (this is the approach under the German news reporting exception).

According to the AG, such a limitation of the exception would not be problematic from an EU law standpoint because it is Article 5(3)(c) itself that limits reproductions 'to the extent justified by the informatory purpose'. Accordingly [the translation from Italian is mine]

 It is my view that such limitation does not only concern the extent of the authorized reproduction and communication, but also those situations in which the exception applies, that is those in which the author of the report could not be reasonably required to request the authorization of the author of the work reproduced and communicated in the context of said reporting. As such, in my view, a limitation of the exception at issue like the one under German law, not only does not contravene the relevant provision in Directive 2001/29, but is actually in line with the nature and objective of said exception. 

According to the AG, the reason why this exception would not apply in the present case is different, and lies in the fact that the EU provision should be read in light of Article 10bis(2) of the Berne Convention. This provision states that:
It shall also be a matter for legislation in the countries of the Union to determine the conditions under which, for the purpose of reporting current events by means of photography, cinematography, broadcasting or communication to the public by wire, literary or artistic works seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced and made available to the public. 
The exception is limited to 'works seen or heard in the course of the event' subject to the reporting. This is not the case of the background proceedings, as the work reproduced is a literary work which one needs to read, rather than just view or hear.

Kat quotation
Article 5(3)(d)

This said, the key issue in this case relates to the scope of the quotation exception. The AG noted that:

The exception in principle is not limited to certain types of work only, and  The methods for including a qutotation into one's own work and identifying the quotation might differ depending on the situation. Also the provision of a link might be appropriate for the sake of making a quotation.

The problem is not, however, how that quotation may be realized but - rather - the extent of what may be quoted. In the present case what the defendant reproduced is the entirety of the claimant's work.

Although the CJEU appears to have allowed the possibility of quoting a photographic work in its entirety (inPainer), it has also spoken of 'reproduction of extracts' (Painer, para 135). The Berne Convention originally spoke of short quotations, while the current text states that the extent of a quotation must not exceed what is justified by the purpose. A similar formulation can be found in Article 5(3)(d). It follows that a quotation may be also of a work in its entirety, insofar as the aim pursued justifies it.

In any event, a quotation must not compete with the original work. Holding otherwise would allow one to elude the economic rights of an author over their work, rendering them devoid of any content thereof:
 the quotation exception may not be applied in situations in which, lacking the authorization of the author, a work is made available to the public on the internet, in its entirety, in the form of an accessible and autonomously downloadable file.
In addition, allowing a quotation that was a substitute for the original would also be contrary to the three-step test in Article 5(5) of the InfoSoc Directive and Article 9(2) of the Berne Convention, notably the requirement that an exception does not conflict - whether actually or even just potentially - with a normal exploitation of the work

Fundamental rights: no fair use in Europe

Having excluded that the exceptions within Article5(3)(c) and (d) would apply, the AG considered whether the use made by the defendant of the claimant's work might be nonetheless justified in light of Article 11 of the Charter of Fundamental Rights of the EU (freedom of expression/information and freedom of the press). This is also a question at issue in Funke Medien and Pelham.

In line with his Opinions in those cases, the AG proposed to rule that normally it is necessary to respect the choices made by legislature, considering that copyright already contains limitation and exceptions aimed at reconciling the exclusive rights of authors with third-party freedoms and rights, including freedom of expression/information.

Holding that it might be possible to supplement the exceptions and limitations provided for in Article 5 of the InfoSoc Directive with further exceptions and limitations would also run contrary to the harmonization objectives of the EU. Above all:
 such possiblity would be tantatmount to introducing into EU law some sort of "fair use clause", in that basically any use of a work that infringes copyright could rely, in one way or another, on freedom of expression. This way, the protection actually available to the rights of authors would depend on the sensitivity of the judges in each Member State towards freedom of expression, thus transforming any harmonization effort into an unattainable goal.

The Opinion of AG Szpunar might appear restrictive to some - especially with regard to the scope of quotation and the take on fair use - but it is not at all surprising, also considering earlier CJEU case law and the wording of the InfoSoc Directive.

That quotation is not borderless appears correct, considering the wording of the Berne Convention and the InfoSoc Directive, as well as the three-step test. This said, consideration of the circumstances at issue is key: the AG was correct in reiterating that a quotation might be also of a work as a whole, but whether that might be the case depends on the purpose of said quotation. 

Finally, the fundamental rights assessment also appears correct and - even if the Opinion does not mention it, it is in line with the case of law of the European Court of Human Rights which has tackled the interplay between copyright and freedom of expression, eg Ashby Donald [here]The Pirate Bay [here] (see also here). 

Let's now see what the CJEU rules. One will have an idea of the fate of Funke MedienPelham and Spiegel Online as soon as the first of these three decisions is out.

By Eleonora Rosati writing on the IPKat 

Wednesday, 9 January 2019

Lets Get It On...Trial - Another Copyright Infringement Case for Ed Sheeran

Hayleigh Bosher writing on the IPKat

Readers may remember a previous post about an ongoing case in the UK against Ed Sheeran, in relation to his is song "Shape of You". Over the pond, Sheeran is accused of copyright infringement of Marvin Gaye's "Let's Get It On" in his song "Thinking Out Loud".

There are two on-going cases relating to "Let's Get It On" and "Thinking Out Loud", before Judge Louis L Stanton in the New York Southern District Court. Neither of the cases are brought by the Gaye Estate. The song was recorded by Marvin Gaye, but was written by Ed Townsend who owned 2/3rd of the royalties for the song when he died in 2003. 

The first is between Structured Asset Sales (SAS) and Sheeran, his co-writer Amy Wadge and their record labels. SAS is a beneficial owner of one-third of all of the copyright rights of Townsend in all of his catalogue of works, including “Let’s Get it On.”

The second case is brought by Kathryn Townsend Griffin (biological daughter of Townsend, adopted as a child by other parents), and the Estate of Townsend. The latest judgement in this case was filed yesterday, here's what happened: 


Townsend filled a complaint for copyright infringement in June 2018. In response Sheeran denied copying and applied for a Summary Judgement to dismiss the case on the grounds that 
1) the scope of the copyright protection is limited to the sheet music as deposited; 2) the songs are not substantially similar; 3) that any alleged similarities are not protected as commonplace elements; 4) that the plaintiff Kathryn Townsend Griffin lacked standing to bring the case since she was adopted by other parents. 

1) The Scope of Copyright Protection 

Add caption
In support of the application for copyright infringement, Townsend submitted the sheet music for LGO. Sheeran argued that the LGO deposit defines the scope of protection, pointing to a previous case (Wolfe v. Zeppelin 905 F . 3d 1116, 9th C 2018) that held the deposit of the plaintiffs work, rather than the sound recording, defined the scope of protection, since the purpose of the deposit is to identify the work in which copyright is claimed.

Both parties agreed that the LGO deposit copy includes the composition's key, meter, harmony (chord progression), rhythm, melody, lyrics, and song structure, but Townsend argued that the composition is embodied on the Gaye recording.

This is important because, as the court noted, hearing the percussion and bass increases the perception of similarity between the works. At this stage, the court left this question open.

2) Are the Songs Substantially Similar? 

Under US law, to prevail on a copyright infringement claim, a plaintiff must establish that the defendant has actually copied the plaintiff's work; and that the copying is of a substantial similarity exists between the defendant's work and the protectible elements of plaintiff's. The test for substantial similarity is whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetic appeal as the same.

In doing so the court considers, whether an average lay observer would recognise the alleged copy as having been appropriated from the copyrighted work. However, where a work has both protectible and unprotectible elements, the analysis must be more discerning, and involves extracting the unprotectible elements from the consideration. The Court then only asks whether the protectible elements, standing alone, are substantially similar.

In the present case, both parties submitted musicologist reports and agreed to some similarities between the songs such as the I - iii - IV-V harmonic progression, harmonic rhythm with anticipated

Ed Sheerans in the 
music video for TOL
second and fourth chords, melody , bass - line , and percussion. Parties dispute the similarity of the vocal melody, harmonic rhythm, harmony, bass-line and percussion. There is no claim of similarities between the lyrics or song structures.

The Judge noted that the key, tempo, meter, and genre of the two compositions are similar , but are unprotectable elements. Sheeran pointed to other elements - song structure , lyrics , and tone - to highlight the difference in "total concept and feel" between the works; submitting that TOL is characterised by somber, melancholic tones, about long-lasting romantic love, whereas LGO is a "sexual anthem that radiates positive emotions and encourages the listener to get it on".

In light of which, the judge held that the question whether TOL is substantially similar LGO should be determined by trial rather than summarily.

3) Is it Infringement or Are The Parts Taken Common Place?

Sheeran argues that the similar elements between the songs are not protected as commonplace elements. The parties dispute whether the basic I - iii-IV- V chord progression used in LGO is common place, or was commonplace prior to LGO. Townsend conceded that Sheeran's expert identified at least thirteen songs that predate LGO that use the same chord progression, and that it appears in at least two guitar method books. However, they noted that only a dozen or so were identified that contained this chord progression prior to LGO. 
Who you calling common place?
Photo: Isola greca

The parties also dispute whether the harmonic rhythm of that four-chord progression - the second and fourth chords being "anticipated" or placed ahead of the beat - is protectable. Sheeran says its a common place technique, Townsend claims its distinctive.

Both disagreements precludes summary judgment since the question of whether the elements warrant copyright protection is a factual question to be determined at trial.

4) Does the Plaintiff Have Standing?

Sheeran argued that the plaintiff Kathryn Townsend Griffin lacked standing to bring the case since she was adopted by other parents. However, the judge agreed followed the decision of the Superior Court of California which previously ordered that Kathryn was an intestate heir of Townsend
and thus entitled to 30% of the royalties from his music.

Lets Get It On Trial, Summary Judgement Denied

The summary judgement was denied because the judge said that the questions relating to the these issues needed to be decided by trial. This is common since the issue of substantial similarity is frequently a fact issue for jury resolution in the US.

A jury might side with either view; it may be impressed by footage of a Sheeran performance which shows him seamlessly transitioning between LGO and TOL. However, a jury could find several similarities between the two songs and therefore find Sheeran to be infringing.  

The case is very similar to another that the Gaye family bought against Robin Thicke and Pharrell Williams, where they succeeded in claiming "Blurred Lines" copied "Got To Give It Up". As a result, the Gaye family received a pay out of $5 Million and 50% of future royalties. So if Sheeran looses he could be face the same level of damages.