The Second Circuit has upheld a lower court’s decision that musician Ed Sheeren didn’t infringe the copyright for Marvin Gaye’s 1973 song “Let’s Get It On.”
As the court noted,
In 2014, Defendants-Appellees Ed Sheeran and Amy Wadge wrote the romantic ballad Thinking Out Loud. It topped global music charts and became one of the most-streamed songs in history, with over 3.8 billion streams on YouTube and 2.5 billion on Spotify.
At the 58th 2016 Grammy Awards, it won Song of the Year and Best Pop Solo Performance.
Forty-one years earlier—in 1973—Ed Townsend and Marvin Gaye wrote Let’s Get It On. Townsend registered a copyright for the song’s melody, harmony, rhythm, and lyrics.
Plaintiff-Appellant Structured Asset Sales, LLC (“SAS”) owns a one-ninth interest in the royalties from Let’s Get It On—one third of Townsend’s one-third share.
As the court notes,
SAS is a firm that purchases royalty interests from musical copyright holders, securitizes them, and sells the securities to other investors.
In 2018, SAS filed suit against Sheeran, Wadge, and those responsible for recording, distributing, and licensing Thinking Out Loud.
SAS alleged that
Sheeran copied Let’s Get It On, as evidenced by the chord progression and harmonic rhythm of the two songs and other similarities to elements found in Gaye’s audio recording.
The district court concluded that SAS’s infringement claim was limited to the scope of the sheet music that Townsend had included with his copyright registration — known as the “Deposit Copy.”
The district court prohibited SAS from comparing “elements in Thinking Out Loud [that] are similar to elements in the Gaye sound recording” (but not the Deposit Copy) and excluded evidence (including expert opinions) not notated in the Deposit Copy.
One such excluded element was the “bass line” in Gaye’s recording, even though one of SAS’s experts said he could “infer” a bass line from the Deposit Copy.
The district court found that “copyright law protects only that which is literally expressed, not that which might be inferred or possibly derived from what is expressed.”
In May 2023, a jury in a related case found that Sheeran did not infringe the Let’s Get It On copyright. The district court in the SAS case then awarded Sheeran summary judgement of non-infringement.
On appeal, the Second Circuit agreed with the district court’s exclusion of evidence—including expert testimony—about anything beyond the four corners of the Deposit Copy, because the scope of a copyright in a musical work registered under the Copyright Act of 1909 “is limited to the elements found in the copy of the work deposited with the Copyright Office.”
The circuit court also agreed that Sheeran was entitled to summary judgement:
We agree that SAS failed to raise a triable issue of fact as to whether the selection and arrangement of the musical building blocks here—a four-chord progression and syncopated harmonic rhythm whose combination undisputedly is present in other prominent musical works—is original enough to be protectable. And taken as a whole, no reasonable jury could find that Thinking Out Loud is so substantially similar to Let’s Get It On as to support an inference of wrongful copying.
“Basic musical building blocks like notes, rhythms, and chords are generally not copyrightable,” according to the court.
As the New York Times reported,
The appeal was being watched by many copyright scholars, who have complained that the “deposit copy” rule, which limits protection for older works to what was written down, rather than what was recorded in a studio, had become out of step with how music has been made in the modern era. The rule was established by the 1909 Copyright Act.
As the Times noted,
A revision to copyright law that took effect in 1978 allowed composers to submit a recording for registration, but that did not apply to “Let’s Get It On.”
Just like the haiku above, we like to keep our posts short and sweet. Hopefully, you found this bite-sized information helpful. If you would like more information, please do not hesitate to contact us here.
