Mystic Chords Of Memory

The United States Court of Appeals for the Second Circuit affirmed the dismissal of a copyright infringement action

In this appeal from a judgment of the United States District Court for the Southern District of New York (Stanton, J.), we consider whether the district court erred by dismissing an action alleging that Ed Sheeran’s 2014 hit Thinking Out Loud infringes the copyright of Marvin Gaye’s 1973 classic Let’s Get It On. It did not. First, the Copyright Act of 1909 protects only the musical composition of Let’s Get It On as defined by the sheet music deposited with the Copyright Office in 1973. Second, we conclude that Plaintiff’s “selection-and-arrangement” theory, predicated on the combination of a four-chord progression and a syncopated harmonic rhythm, fails as a matter of law. Accordingly, we AFFIRM the judgment of the district court.

The music

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 Grammy Awards in 2016, it won Song of the Year and Best Pop Solo Performance and earned a Record of the Year nomination. Forty-one years earlier—in 1973—Ed Townsend and Marvin Gaye wrote Let’s Get It On. Gaye is a music icon and one of Motown’s biggest stars, and Let’s Get It On was one of his greatest hits. That same year, Townsend registered a copyright for Let’s Get It On by sending a copy of the five pages of sheet music for the song’s melody, harmony, rhythm, and lyrics—the “Deposit Copy”—to the Copyright Office. The copyright was registered as No. EP314589.

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. SAS is a firm that purchases royalty interests from musical copyright holders, securitizes them, and sells the securities to other investors. The record before us indicates that the remaining two thirds of Townsend’s interest (or two ninths) belong to Kathryn Griffin, Helen McDonald, and the Estate of Cherrig ale Townsend. Successors to Gaye and Motown Records—including Defendant-Appellee Sony/ATV Music Publishing—own the remaining two thirds of Let’s Get It On.

Claim of plagiarism

In sum, the allegedly infringing elements here boil down to a similar, but not identical, four-chord progression paired with a commonplace harmonic syncopation, neither of which is sufficiently original to be protectable in isolation, nor is their combination. What is more, the songs are not substantially similar taken as a whole. Thus, no reasonable jury could infer that Sheeran plagiarized the Deposit Copy when he wrote Thinking Out Loud. We affirm the district court’s entry of summary judgment in Sheeran’s favor.

(Mike Frisch)