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“Finding for SAS on its selection-and-arrangement claim ‘risks granting a monopoly over a combination of two fundamental musical building blocks.’”
Late last week, the U.S. Court of Appeals for the Second Circuit issued a ruling in Structured Asset Sales, LLC v. Sheeran affirming the Southern District of New York’s dismissal of copyright infringement claims filed against British singer-songwriter Ed Sheeran over his 2014 single “Thinking Out Loud.” Assessing arguments made by a co-rightsholder to Marvin Gaye’s 1973 single “Let’s Get It On,” the Second Circuit found that the district court properly limited the scope of the infringement allegations to Gaye’s sheet music deposit copy filed at the U.S. Copyright Office, and that the plaintiff’s “selection-and-arrangement” theory relied on musical elements too unoriginal for copyright even in combination.
Expert Testimony Properly Limited to Four Corners of Gaye’s Deposit Copy
Structured Asset Sales (SAS), which owns a one-ninth interest in Gaye’s 1973 R&B hit, filed its infringement suit against Sheeran in 2018 separately from the heirs of Marvin Gaye, who sued Sheeran on their two-thirds’ interest in “Let’s Get It On.” Following a May 2023 jury verdict absolving Sheeran of the infringement allegations filed by Gaye’s heirs, the Southern New York district court granted Sheeran’s motion for reconsideration, entering summary judgment against SAS’s infringement claims. The district court noted that the chord progression and harmonic rhythm alleged to be infringed were too unoriginal to meet the numerosity requirement imposed on “selection-and-arrangement” infringement claims.
On appeal, SAS argued that the district court improperly limited the infringement evidence it could present to five pages of sheet music filed with the Copyright Office as the deposit copy of “Let’s Get It On.” Analyzing this argument, the Second Circuit began by noting that Gaye’s 1973 single is governed by the terms of the 1909 Copyright Act. Notice requirements under the 1909 Act require that the © copyright symbol be affixed to published works, which is impossible for sound recordings. While the 1909 Act required less than a complete copy to register copyright to most works, musical compositions in particular required deposit of the complete sheet music for registration. The Second Circuit noted that it was thus reaching the same conclusion on the scope of copyright protection under the 1909 Act as the Ninth Circuit in Skidmore v. Zeppelin (2020).
On appeal, SAS had argued that the 1909 Act requires a showing of access and substantial similarity to the work, here Gaye’s 1973 sound recording, and not the deposit copy. However, the Second Circuit noted that ignoring the copyright registration condition that plaintiffs must satisfy before seeking remedies under the 1909 Act would allow infringement suits for unregistered works. Further, the Second Circuit found SAS’ argument to the scope of protection under common law to be irrelevant, as SAS did not include a common law claim, and that the Berne Convention’s provisions on treating U.S. and foreign copyright owners similarly were not implicated as SAS was asserting a domestic copyright.
This limit to the scope of SAS’s copyright protections allowed the district court to exclude expert testimony proffered by the plaintiff without abusing its discretion. SAS’s expert witness testified that the chord progression notated in Gaye’s deposit copy implied a bass line. While expert testimony can help interpret what is present within the four corners of the deposit copy, the Second Circuit held that consideration of the implied bass line would not have impacted the analysis of SAS’s “selection-and-arrangement” theory as the implied element is by nature combined with the express chord progression.
Commonplace Chord Progression and Harmonic Rhythm Not Protectable in Combination
Moving on to its assessment of the district court’s summary judgment ruling, the Second Circuit noted that the selection and arrangement of unprotectable elements can give rise to copyright protection under the U.S. Supreme Court’s 1991 ruling in Feist Publication v. Rural Telephone Service Company. However, ordinary observer tests for substantial similarity are more discerning in such cases, requiring the court to extract unprotectable elements to consider the protectable elements alone.
SAS alleged that Sheeran’s “Thinking Out Loud” infringed both the I-IV-V chord progression of “Let’s Get It On” as well as its syncopated harmonic rhythm. After noting that neither of these elements were protectable alone, the Second Circuit found that SAS’s expert witness did not rebut Sheeran’s expert witness, who testified that there was nothing distinctive about the combination of the anticipation technique with a commonplace chord progression. Finding for SAS on its selection-and-arrangement claim “risks granting a monopoly over a combination of two fundamental musical building blocks,” the appellate court added.
The Second Circuit completed its ruling by agreeing with the district court that both songs were not substantially similar as a whole. While the harmonic rhythm and chord progression in both created a similar sound and feel, the appellate court noted major differences in the lyrics and melodies of both songs. Concluding that no reasonable jury could find that Sheeran’s “Thinking Out Loud” infringed Gaye’s deposit copy, the Second Circuit affirmed the summary judgment ruling for Sheeran.
Image Source: Deposit Photos
Author: alexlmx
Image ID: 118290464
