Structured Asset Sales, LLC v. Sheeran

In action alleging that Ed Sheeran’s 2014 song “Thinking Out Loud” infringed on copyright of Marvin Gaye’s 1973 song “Let’s Get It On,” Second Circuit affirms district court’s ruling of no infringement, finding that Copyright Act of 1909 protects only musical composition of “Let’s Get It On” as defined by sheet music deposited with Copyright Office in 1973 and that “selection and arrangement” theory, predicated on combination of four-chord progression and syncopated harmonic rhythm, failed as matter of law. 

In 2018, Structured Asset Sales LLC (SAS)—a partial co-owner of royalties from Marvin Gaye’s 1973 song “Let’s Get It On”—sued singer-songwriter Ed Sheeran and others responsible for recording, distributing and licensing Sheeran’s 2014 hit song “Thinking Out Loud.” SAS alleged that Sheeran copied “Let’s Get It On,” as shown by the chord progression and harmonic rhythm of the two songs and other similarities. 

Sheeran moved for summary judgment in April 2021. While Sheeran’s motion for summary judgment was pending, the district court resolved several of Sheeran’s motions in limine and, most significantly, excluded Gaye’s audio recording of “Let’s Get It On”  because the recording was not reflected in the deposit copy of the work that was submitted to the Copyright Office in 1973. The district court nevertheless denied Sheeran’s motion for summary judgment, and held that the question of whether the chord progression and harmonic rhythm in “Let’s Get It On” demonstrated sufficient originality and creativity to warrant copyright protection was a factual question to be determined at trial. 

Sheeran moved for reconsideration. In the meantime, a jury in a related action found that Sheeran did not infringe on the “Let’s Get It On” copyright, and the district court in the SAS lawsuit granted Sheeran’s motion for reconsideration and awarded him summary judgment (read our summary of that ruling here). The district court explained that “common 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.” The district court further concluded that the chord progression and harmonic rhythm in “Let’s Get It On” were “so commonplace, in isolation and in combination, that to protect their combination would give [“Let’s Get It On”] an impermissible monopoly over a basic musical building block.” 

On appeal, SAS first argued that the district court erred by limiting the evidence it could present in support of its infringement claim, particularly with respect to the scope of the 1973 registration. The Second Circuit disagreed and held that the scope of a copyright in a musical work registered under the Copyright Act of 1909 (1909 Act) is limited to the elements found in the copy of the work deposited with the Copyright Office. The panel explained that to secure an enforceable copyright of a musical work under the 1909 Act, the copyright applicant had to publish at least one “complete copy” of the work. Because a copyright notice could not be affixed to a sound, a musical composition was deemed “published” under the 1909 Act only if the sheet music was published. 

When the copyright for “Let’s Get It On” was deposited, five pages of sheet music were mailed to the Copyright Office. The panel therefore concluded that the scope of the copyright for “Let’s Get It On” was limited to the four corners of the deposit copy, and elements not included with the deposit copy, including certain elements of Gaye’s audio recording, were not protected by the registration. The panel rejected SAS’ argument that a plaintiff must show access and substantial similarity to the work itself, rather than to the deposit copy of the work, because the 1909 Act provides that a musical “work” registered under the 1909 Act is the complete copy filed with the Copyright Office. The material and elements not appearing in the deposited sheet music were therefore not registered and thus were irrelevant to an infringement action. 

SAS also argued that the district court erred in granting summary judgment to Sheeran, primarily because the selection and arrangement of two musical elements— the chord progression and syncopated harmonic rhythm—are original enough to merit copyright protection. In explaining the standard for its substantial similarity analysis, the panel emphasized that music “necessarily borrow[s]” and “use[s] much of what was well known and used before.” With respect to a selection-and-arrangement theory of copyright, the substantial similarity test is “more discerning,” and a court must extract the unprotectable elements from consideration to assess whether the protectable elements, standing alone, are substantially similar. 

The panel agreed with the district court that SAS failed to raise a triable issue of fact that the combination of “Let’s Get It On” chord progression and syncopated harmonic rhythm was original and thus protectable. Because the chord protection was a simple four chords, the panel concluded that it was not protectable on its own. As to the harmonic rhythm—or the timing of the chord changes—SAS argued that the manner in which the second and fourth chord changes come slightly ahead of the beat on which they fall was a form of syncopation and sufficiently original and creative to warrant copyright protection. The panel disagreed and concluded that “commonplace harmonic rhythms, like basic chord progressions, are unprotectable musical building blocks.” 

Leaving aside the chord progression and syncopated harmonic rhythm on their own, SAS contended that the selection and arrangement of those two elements in “Let’s Get It On”  was sufficiently original to obtain copyright protection. At the district court level, Sheeran’s expert determined that the same combination of elements was previously embodied in other well-known works and therefore was not sufficiently novel, unique or distinctive. The panel agreed and found SAS’ bare-bones argument insufficient to create a triable issue of fact as to protectability.  

The panel further held that the selection-and-arrangement claim fails because it risks granting a monopoly over a combination of two fundamental musical building blocks. Specifically, because the four-chord progression at issue is “ubiquitous in pop music,” even when coupled with a syncopated harmonic rhythm, it cannot satisfy the originality threshold required for copyright protection. The panel reasoned that overprotecting such fundamental elements would threaten to stifle creativity and undermine the purpose of copyright law. 

Finally, the Second Circuit agreed that a reasonable jury could not find the songs as a whole, including their melodies and lyrics, to be substantially similar. 

Because the allegedly infringing elements were limited to a similar—but not identical—chord progression and commonplace harmonic syncopation that were not sufficiently original to be protectable, and the two songs were not substantially similar taken as a whole, the Second Circuit found that no reasonable jury could infer that Sheeran plagiarized the deposit copy of “Let’s Get It On,”  and affirmed the district court’s entry of summary judgment in Sheeran’s favor. 

Summary prepared by Safia Gray Hussain and Elena DeSantis.