November 7, 2024

Second Circuit Rejects Challenge to Ed Sheeran’s “Thinking Out Loud”

November 7, 2024

November 6, 2024

Last Friday, the Second Circuit Court of Appeals affirmed the Southern District of New York’s judgment against claims brought against Ed Sheeran arising from his 2014 hit “Thinking Out Loud.” In Structured Asset Sales v. Sheeran, the Second Circuit found that Sheeran did not infringe on Marvin Gaye’s “Let’s Get it On,” despite alleged similarities between the two songs’ chord progressions and harmonic rhythms.

The three-judge panel rejected arguments made by Structed Asset Sales (SAS), an entity that owns a one-ninth interest in the copyright for the musical composition “Let’s Get It On,” that the District Court improperly excluded evidence and expert testimony relating to musical elements outside of the sheet music. The Circuit Court held that under the 1909 Copyright Act, SAS’s copyright interest only encompasses the composition as embodied in the sheet music that was used as deposit material with the Copyright Office. Accordingly, the District Court correctly limited the lay and expert evidence of similarity to musical elements contained in the sheet music for “Let’s Get It On,” but not elements only present in the audio recording. One such element was the bass line of “Let’s Get It On,” as the sheet music for the song does not contain the bass guitar part heard in the audio recording.

Similarly, the Circuit Court affirmed the District Court’s construction of the 1909 Copyright Act to limit the scope of SAS’s rights to only the sheet music provided to the U.S. Copyright Office as deposit material. Though SAS argued that its copyright interest extended to the “musical composition” in its entirety, the judges found that the work protected by the Copyright Act was limited to what was filed with the Copyright Office. The Court held this construction was consistent with both the statutory language requiring that the deposit material for a copyright application in a musical composition contain a “complete copy” and the general principle that fair notice be given to the public as to the subject of the underlying copyright.

The Second Circuit then evaluated whether there existed a “substantial similarity” between the two songs such that a finding of summary judgment for Sheeran was warranted. SAS argued that chord progression, harmonic rhythm, and those two elements in combination all established a valid infringement claim. The Circuit Court affirmed the District Court’s rejection of these arguments. As to the chord progression, the Circuit Court agreed with Sheeran that the “simple chord progression” embodied in “Let’s Get It On” was not protectible. Similarly, the harmonic progression – the timing of chord changes in SAS’s composition – was similarly commonplace and unprotectible. Finally, the Circuit Court rejected SAS’s attempt to package these two elements together into a “selection and arrangement” claim. The expert evidence showed that compositions pre-dating those at issue demonstrated that the similarities between the two works are based on “garden variety” elements in the public domain. Granting SAS protection over such elements would grant an unjust monopoly over two of music’s fundamental building blocks. Accordingly, the summary judgment granted to Sheeran was affirmed, and SAS’s infringement claim was rejected.

Article by David Griffith

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