Second Circuit Denies Rehearing En Banc, Affirming No Reasonable Jury Could Find Sheeran’s “Thinking Out Loud” and Gaye’s “Let’s Get It On” Are Substantially Similar

The U.S. Court of Appeals for the Second Circuit vindicated pop star Ed Sheeran against copyright infringement claims directed to his 2014 hit “Thinking Out Loud.” A holding company called Structured Asset Sales, LLC (“SAS”) sued Sheeran in 2018, claiming that “Thinking Out Loud” infringed the copyright in Ed Townsend and Marvin Gaye’s 1973 song “Let’s Get It On.” The United States District Court for the Southern District of New York entered summary judgment in Sheeran’s favor, and the Second Circuit affirmed. The court analyzed the Copyright Act of 1909 and held that the scope of copyright protection for a musical composition was limited to what was reflected in the deposit copy because of a requirement that the “complete” work be submitted to the Copyright Office. The Court thus declined to consider expert testimony about a bass line common to both songs that only appeared in the “Let’s Get It On” audio recording and not in the sheet music submitted as the deposit copy. Comparing the “Let’s Get It On” deposit copy to “Thinking Out Loud,” the court ultimately concluded that “Thinking Out Loud” was not substantially similar to any protectable expression in “Let’s Get It On,” because the common elements of the chord progressions and syncopated rhythms in “Let’s Get It On” were not original expressions taken separately or together.

Key Takeaways

The Sheeran case highlights the importance of competent representation beginning at copyright registration. U.S. music copyright law distinguishes between rights in a song’s underlying music and lyrics (the musical composition) and a recording of a performance of the song that may be embodied in a phonorecord such as a CD, vinyl, or MP3 (the sound recording). In the Sheeran case, SAS asserted ownership of the musical composition for “Let’s Get It On,” not the sound recording. The Second Circuit’s analysis of the Copyright Act of 1909 (which applied to the 1973 work) revealed that the use of sheet music as the deposit copy for registration limited the later infringement analysis to the four corners of the sheet music. The death knell for SAS’s argument was that the critical evidence of a common bass line between “Let’s Get It On” and “Thinking Out Loud” was not reflected in the “Let’s Get It On” sheet music and was only present in the inadmissible sound recording.

The outcome of Sheeran is not limited to infringement of music copyrights. The U.S. Copyright Office requires an applicant to submit a “complete copy or copies of a work” as a deposit copy unless the Office expressly allows the submission of “identifying material” instead (for certain types of works that would be impractical to submit in their entireties). The circumstances where identifying material is accepted are limited (e.g., photographs submitted in lieu of three-dimensional works of visual art, redacted versions of secure tests, portions of computer source code, etc.).  Thus, except in the limited cases where identifying material is allowed, the holding of Sheeran confining the scope of protection to the four corners of a deposit copy carries the potential for wide reverberations in interpreting infringement and evidence admissibility in non-music copyright infringement cases as well.

Background & Procedural History

In 1973, Marvin Gaye and fellow singer-songwriter Ed Townsend released the song “Let’s Get It On,” and Townsend registered a copyright in the musical composition by sending to the Copyright Office a deposit copy consisting of the sheet music containing the song’s melody, harmony, rhythm, and lyrics. Notably, the sheet music did not denote any bass line. The Office registered the copyright as No. EP314589. Over 40 years later, in 2014, Ed Sheeran released “Thinking Out Loud.”

In 2018, SAS filed a copyright infringement lawsuit against Sheeran, claiming Sheeran infringed the “Let’s Get It On” musical composition. SAS is a firm that purchases royalty interests from musical copyright holders, securitizes them, and sells the securities to other investors. SAS owns a one-ninth interest in the royalties from “Let’s Get It On” and is a co-owner of the copyright through Townsend. SAS’s claim that “Thinking Out Loud” was substantially similar to “Let’s Get It On” was based on various elements of the songs, including their chord progressions, syncopated rhythms, and bass lines.

In April 2021, Sheeran moved for summary judgment, arguing that the parties’ works were not substantially similar. While Sheeran’s motion was pending, in September 2021, the district court resolved several of Sheeran’s motions in limine. One of these rulings excluded, among other things, Gaye’s audio recording of “Let’s Get It On” because the district court concluded that SAS’s infringement claim was limited to the scope of Townsend’s registration, which included only the musical composition and no audio. As part of the same ruling, the court also excluded an expert opinion from SAS’s music theory expert, John Covach. Covach had opined that he could “infer” a bass line from the deposit copy because “[t]he most direct and basic practice is for the bass line to be formed from the roots of each [of] the chords specified above the melody in the [sheet music].” Covach claimed that musicians would understand this based on a review of the “Let’s Get It On” sheet music in the deposit copy. Naturally, Covach’s identified bass line is the same one that occurs in both the “Let’s Get It On” and “Thinking Out Loud” sound recordings. In excluding Covach’s opinion, the district court stated that “copyright law protects only that which is literally expressed, not that which might be inferred or possibly derived from what is expressed.”

Following this ruling, Sheeran renewed his motion for summary judgment, arguing that: “(i) the combination of two unprotectable elements [the chord progression and syncopated rhythm] is not sufficiently numerous or original to constitute an original work entitled to copyright protection under the ‘selection and arrangement’ theory of liability; and (ii) Let’s Get It On’s backing pattern [e.g., the bass line] is not identical or nearly identical to that in Thinking Out Loud.” The district court originally denied Sheeran’s motion, but Sheeran moved for reconsideration, and this time the district court granted it and awarded Sheeran summary judgment. The district court concluded that “[t]here is no genuine issue of material fact” that the defendants did not infringe the protected elements of “Let’s Get It On” because the elements SAS alleged Sheeran had copied were not protectable: “[C]ommon sense dictates that in the context of a musical composition, ‘numerous’ requires more than just a commonplace chord progression and harmonic rhythm to warrant protecting their combination.”

SAS appealed to the U.S. Court of Appeals for the Second Circuit. On November 1, 2024, the Second Circuit affirmed.

Discussion

1. Copyright Act of 1909 Limited the Scope of Protection to the Deposit Copy, so “Let’s Get It On” Audio and Covach Reports Were Reasonably Excluded

On appeal, SAS first claimed that the district court erred by granting Sheeran’s motion in limine that prevented the introduction of the “Let’s Get It On” sound recording and Covach’s expert report on the implied bass line. The Second Circuit found that the scope of copyright protection in a musical composition registered under the Copyright Act of 1909—which was the version of the act in effect when Townsend registered the “Let’s Get It On” copyright in 1973—“is limited to the elements found in the copy of the work deposited with the Copyright Office.” This is because a copyright registrant was required to deposit with the Copyright Office at least one “complete copy” of the work to secure an enforceable registration.  Thus, the Second Circuit held that the district court correctly limited the plaintiff’s claim to the four corners of the sheet music deposit. The elements of the “Let’s Get It On” audio recording that does not appear in the deposit were therefore not protected by the copyright registration.

With regard to Covach’s expert report, the court noted that Covach himself conceded that the deposited musical composition did not include “a notated bass part,” and the bass line that he “inferred” was “merely one of ‘many possibilities.’”  While “[t]here may be some instances in which expert testimony of this sort can aid the trier-of-fact in interpreting what, precisely, is represented in the four corners of the [deposit],” the Second Circuit could not find “the decision to exclude Covach’s proffered testimony” to be “manifestly erroneous.”

2. There Was No Original Expression in the Basic Chord Progressions, Syncopated Rhythms, or Combination Thereof, and the Songs Were Not Substantially Similar

Second, SAS claimed that the district court erred by entering summary judgment for Sheeran because it is for the jury to determine, based on the similarities between the two songs, whether Sheeran infringed the “Let’s Get It On” copyright. The Second Circuit affirmed the district court’s judgment. The court held that the allegedly infringing elements here boiled down to a similar, but not identical, four-chord progression paired with a commonplace harmonic syncopation, neither of which was sufficiently original to be protectable in isolation. The Second Circuit further determined that the combination of these elements also lacked any originality and criticized SAS for attempting to assert a monopoly right “over a combination of two fundamental musical building blocks.”

When it came to the test for substantial similarity, the court found that the songs were not substantially similar when taken as whole, and thus, no reasonable jury could infer that Sheeran copied the musical composition of “Let’s Get It On” when he wrote “Thinking Out Loud.”  Considering the “total concept and overall feel” of the two songs, the court held that neither the melody nor the lyrics of “Thinking Out Loud” bears any resemblance to those in “Let’s Get It On,” and thus there was no substantial similarity between the works.

Petition for En Banc Review & Denial

On November 15, 2024, SAS petitioned the Second Circuit for en banc rehearing “to address questions of exceptional importance relating to the proper interpretation of the 1909 Copyright Act, and the proper application of the United States Supreme Court’s 2024 Loper Bright decision.” The petition first claimed that the court erred in its analysis of the 1909 Act because its statutory interpretation that a “complete” copy was required for certain works but not others (i.e., those for which “identifying material” is permitted) could not be squared with its policy analysis that the complete copy was required to give “fair notice” to third parties of what the work contained.  SAS noted that other courts, like the Ninth Circuit, struggled to reconcile these differences and had accepted “identifying” material to be sufficient for notice purposes (which SAS argued is more consistent with the treatment of other copyrighted works like source code).

SAS’s second claim was that the court should not have given extensive weight to Copyright Office procedures and the “Compendium of U.S. Copyright Office Practices,” given that the Supreme Court overruled the Chevron doctrine of deference to administrative agencies in the 2024 cases Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce. SAS claimed that the court mistreated the Compendium as an authority and in fact should not have considered the Compendium at all.  (As we have previously commented, the Supreme Court’s Chevron reversal could have broad reverberations in copyright law.)

Despite SAS’s arguments, on December 6, 2024, the Court denied the petition for rehearing in a summary order.

The case is Structured Asset Sales, LLC v. Sheeran, Case No. 1:18-cv-05839 (2nd Cir. 2024).