A federal appeals court on Friday ruled that Ed Sheeran’s 2014 song “Thinking Out Loud” did not infringe on the copyright of Marvin Gaye’s classic “Let’s Get It On,” tying up one loose end after Sheeran’s victory in court last year.
In a 28-page decision, a three-judge panel from the U.S. Court of Appeals for the Second Circuit in New York affirmed a lower court’s ruling that the songwriting copyright in “Let’s Get It On” (1973) was limited to the skeletal sheet music that the song’s publishers had deposited with the U.S. Copyright Office. Additional musical elements in the song’s recording — including guitar and drum parts, and its distinctive bass line — were therefore not protected by copyright, the judges found.
They also rejected arguments from Structured Asset Sales, a music investment company that owns an 11.11 percent interest in “Let’s Get It On,” that the song’s four-chord pattern was original enough to have a copyright. Not only is it commonplace in many songs, the judges said, but the chords’ “selection and arrangement” in a syncopated pattern was also not original.
“Basic musical building blocks like notes, rhythms, and chords are generally not copyrightable,” the judges wrote.
The appeal was being watched by many copyright scholars, who have complained that the “deposit copy” rule, which limits protection for older works to what was written down, rather than what was recorded in a studio, had become out of step with how music has been made in the modern era. The rule was established by the 1909 Copyright Act.
“It is completely divorced from actual music-making practice,” Joseph P. Fishman, a professor at Vanderbilt Law School, said in an interview with The New York Times earlier this year.
The case that went to trial last year had been brought by descendants of Ed Townsend, Gaye’s co-writer. A key dispute throughout that case had been whether the “scope” of the copyright in “Let’s Get It On” — exactly which parts of the song were protected by law, and which were not — was defined by its written deposit copy, or whether jurors could also consider additional elements from Gaye’s famous recording.
The district judge, citing a similar case in California involving Led Zeppelin’s “Stairway to Heaven,” ruled that only the written notes on the deposit copy were part of the copyright. A revision to copyright law that took effect in 1978 allowed composers to submit a recording for registration, but that did not apply to “Let’s Get It On.” Lawyers for Sheeran also argued at trial that the syncopated chord pattern of “Thinking Out Loud” predated “Let’s Get It On” and was generic enough not to be protected by copyright.
Since the commercial recording of “Let’s Get It On” could not be played at trial, jurors heard an electronic “realization” of the tune with a robotic voice.
The jury decided in Sheeran’s favor, finding that Sheeran and Amy Wadge, his collaborator, had written “Thinking Out Loud” independently, and did not infringe on Gaye and Townsend’s composition. The jury made no finding about the “selection and arrangement” of elements in the two songs.
Structured Asset Sales, which was not a party to the Townsend suit, brought two additional cases arguing that “Thinking Out Loud” infringed on “Let’s Get It On.” The first was dismissed by the district court judge after Sheeran won at trial, and was appealed. The second, involving a new copyright registration of “Let’s Get It On” via a sound recording, was stayed by a different judge pending the appeal.
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