Ed Sheeran’s ‘Thinking Out Loud’ Win Upheld by Second Circuit

Ed Sheeran’s hit song “Thinking Out Loud” didn’t copy Marvin Gaye’s soul classic “Let’s Get It On,” the Second Circuit affirmed, upholding the district court’s summary judgment ruling and its finding that only sheet music on file with the Copyright Office is relevant to the case.

The three-judge panel agreed with the lower court’s decision to exclude evidence “about anything beyond the four corners” of the sheet music on file because the scope of Copyright Act protection “is limited to the elements found in the copy of the work deposited,” Judge Michael H. Park wrote in the Friday opinion filed in the US Court of Appeals for the Second Circuit.

Park said the elements focusing on a similar chord progression and syncopated rhythm that plaintiff Structured Asset Sales LLC argued were infringing weren’t original enough to be protectable under copyright law. He added the songs weren’t “substantially similar taken as a whole” and that no reasonable jury would find that Sheeran copied Gaye’s song.

SAS, which securitizes music copyrights and owns a one-ninth stake in the rights for “Let’s Get It On,” sued in 2018 accusing Sheeran of plagiarizing Gaye’s 1973 hit. A jury in a separate case brought by the song’s other rightsholders found Sheeran and co-writer Amy Wadge didn’t copy Gaye’s song on May 4, 2023. Twelve days later, District Judge Louis Stanton awarded Sheeran summary judgment against SAS, dismissing the suit.

SAS appealed the ruling in June last year, claiming the judge had erred both in granting summary judgment and not admitting its evidence or allowing arguments regarding the similarities in the songs’ musical arrangements.

Stanton had limited evidence in the case to “Let’s Get It On” composer Ed Townsend’s copyright registration reflected in the deposit copy, which excluded notations of musical items like the bass line, Friday’s opinion noted. The judge excluded testimony by SAS’s expert, who said the bass line could be “inferred” from the five pages of sheet music.

Sheeran’s attorneys had insisted the bass line was not an expressly protected element of the song. The district court agreed, saying copyright law only protects “that which is literally expressed, not that which might be inferred or possibly derived from what is expressed,” the opinion said.

Park rejected SAS’s argument that the 1973 song’s four-chord progression and synocapted rhythm, even if individually unprotectable, qualified for copyright protection when put together because of the selection and arrangement of the two elements.

That claim “fails because it risks granting a monopoly over a combination of two fundamental musical building blocks,” Park wrote. “The four-chord progression at issue—ubiquitous in pop music—even coupled with a syncopated harmonic rhythm, is too well-explored to meet the originality threshold that copyright law demands.”

Circuit Judges Barrington D. Parker and Guido Calabresi joined the opinion.

Parness Law Firm PLLC represents SAS. Pryor Cashman LLP represents Sheeran.

The case is Structured Asset Sales, LLC v. Sheeran, 2d Cir., No. 23-00905, opinion filed 11/1/24.