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Sheeran Song-Theft Case Could Let Jury Hear for Itself, at Last

Oct. 9, 2020, 9:00 AM

A Led Zeppelin copyright win will let Ed Sheeran keep a jury next month from hearing his hit song “Thinking Out Loud” side-by-side with Marvin Gaye’s 1973 soul classic “Let’s Get It On,” from which Sheeran allegedly stole.

But the Led Zeppelin case highlighted a path to let a future jury—in another fight Sheeran is having with different rightsholders—compare the sound recordings, something that had been effectively precluded because of the complex development of U.S. music rights.

The lawsuits against Sheeran and Led Zeppelin illustrate the value for plaintiffs of getting disputed songs played for a jury, and illuminate an emerging legal backdoor that could for the first time let jurors hear records made decades ago—when artists could only register written notes and lyrics.

Led Zeppelin convinced the U.S. Court of Appeals for the Ninth Circuit in March to prevent a new trial that could have let a jury hear a 1968 recording of “Taurus” by a Los Angeles band called Spirit, who claimed the legendary British rock band stole its tune for the intro to its 1971 classic “Stairway to Heaven.”

The U.S. Copyright Office agreed with the heart of the appeals court ruling: that the scope of a work’s copyright protection is entirely defined by the copy of the work, or deposit, submitted for registration. But in a friend of the court brief on Led Zeppelin’s behalf, it also said artists like Spirit can register decades-old sound recordings, even now, to protect elements not in the written registration.

And that should catch the ear of anyone owning an old song who feels it was infringed, music copyright attorney William Stroever of Cole Schotz PC said.

“The Copyright Office making the statement that this would be permissible means every potential plaintiff should go file it,” Stroever said. “Take a shot; the Copyright Office is on your side. The burden is on the defendants to defend it.”

The Supreme Court this week without comment let stand the Ninth Circuit decision in the Led Zeppelin case.

‘It’s Not Lost’

Structured Asset Sales LLC, which acquired part of Gaye’s “Let’s Get It On” from an heir of songwriter Edward Townsend, claims to be the first to run with the Copyright Office advice in its complaint against Sheeran filed in June. The case is separate from the November jury trial in a case brought by different Townsend heirs over the same alleged infringement.

Structured Asset Sales registered the sound recording of Gaye’s 47-year-old song in April—eight months after the Copyright Office’s friend of the court brief. It argued it merely did what the Copyright Office suggested in its Oct. 2 response to Sheeran’s motion to dismiss.

The legally untested maneuver raises questions in the already labyrinthine world of music copyright law. The lack of precedent, given the recency of the Led Zeppelin decision, means ambiguities remain over circumstances where an old recording could be registered, and how courts would treat it, Stroever said.

But no law says old recordings with elements not reflected in old paper registrations aren’t protectable compositions, said Robert W. Clarida of Reitler Kailas & Rosenblatt LLC. The material, however old, is still an unregistered creation that’s “fixed to a medium”—meaning it can be registered, Clarida said.

“The alternative to being able to do that is either it’s covered by the original deposit—and it’s not because you have to deposit the complete copy of the work—or it’s never registrable,” Clarida said. That would mean “it’s lost to posterity and copyright, and people can’t do anything to protect it. And it’s not lost.”

‘Sufficiently Original’ Additions

Music rights are complex and layered, with multiple types of rights and registrations. Rights are also often split among band members, co-writers, heirs, and record companies.

The Copyright Act of 1909 protected compositions created by composers and lyricists, with works registered through paper deposits. Then a 1971 law created a new, separate performance right for songs, owned not necessarily by songwriters but the musicians and singers who perform them. The Sheeran and Led Zeppelin cases don’t involve performance rights, which address only public performances of a song, live or recorded.

The Copyright Act of 1976 said sound recording deposits can represent songwriter compositions, starting in 1978. What’s untested is whether a sound recording from before then could be registered as a separate deposit to supplement incomplete sheet music.

Though he doesn’t think Led Zeppelin infringed, Clarida disagreed with barring the sound recording of “Taurus” from trial. The song is the actual creation being protected, and shouldn’t be confined to musical notation the creators sometimes can’t even read, Clarida said.

The Copyright Office, however, described leaving important elements out of a deposit as a “failing” by the copyright owner, but “not an insurmountable obstacle.”

“Regardless of the outcome of this appeal, the elements of the song deemed significant enough to include in the deposit will still have copyright protection if they are sufficiently original,” the office’s brief to the Ninth Circuit said, adding that “such material must be separately registered with the Copyright Office before an infringement suit can be brought.”

Copyright Office general counsel Regan Smith said it’s up to the courts to determine how to evaluate cases with paired written and recorded registrations covering a song’s composition, such as whether they could be considered one work or one would have to be infringed independently.

She acknowledged it’s possible they’d be handled similarly to new editions of textbooks. In both scenarios, new material is tacked onto an existing registration. While the new registration wouldn’t protect any previously registered material, the new whole would be protected in its entirety.

Questions to Remain Unanswered?

Previously, courts haven’t had opportunities to address the question, said copyright attorney Jason P. Bloom, who heads Haynes & Boone LLP’s copyright practice.

“How many cases like that are filed, where you’ve got the real similarity in the sound recording but not the sheet music?” Bloom said, adding he didn’t see a reason the Copyright Office suggestion would be incorrect.

But Sheeran’s legal team argued Structured Asset Sales, owner of an 11.1% stake in the song, had no right to register the recording. The parties interpret differently Copyright Office rules allowing applications from “a claimant who owns all of the rights that initially belonged to a deceased author.”

Structured Asset Sales claimed that all Townsend’s heirs back the registration, a claim confirmed by counsel for the plaintiffs awaiting the November trial. But Sheeran said Townsend no longer “owns all of the rights that initially belonged to” Townsend because Stone Diamond Music Corp. owns the copyright.

In its suit, Structured Asset Sales accuses Stone Diamond and Sony/ATV Music Publishing LLC of failing protect the Gaye song while profiting from Sheeran. It also said “rights” that can form a basis for registration include an author’s exclusive right, regardless of ownership. Sheeran counters that Structured Asset Sales can’t know who authored unregistered portions of the song, which include instruments Townsend didn’t play.

Audio of “Let’s Get It On” was excluded from the November trial two weeks after the Ninth Circuit’s Led Zeppelin ruling.

But Structured Asset Sales CEO David Pullman has said Sheeran is “petrified” of the audio reaching a jury in its case. Copyright attorney Robert J. Burger of McCarter & English LLP said that fear would be justified.

“Once the sound recording gets in and you line up against the Marvin Gaye song, the rhythm section is almost identical,” Burger said. “It wouldn’t be too hard for a jury to find infringement, even without going through all the gymnastics that the experts go through.”

But Sheeran attorney Donald S. Zakarin of Pryor Cashman LLP disagreed, citing the music, expert reports, and the facts of the case.

“I cannot imagine what reputable third-party attorney with any copyright law experience and any musical knowledge would ever suggest that Ed should be concerned about the recordings,” he said in an emailed statement.

The case could provide clarity on how new registrations on old recordings would be handled, said Burger, who stood by his comments. He said he hopes Sheeran doesn’t escape Structured Asset Sales’ suit because of a faulty registration.

“It will leave the other questions unanswered,” he said.

To contact the reporter on this story: Kyle Jahner in Washington at kjahner@bloomberglaw.com

To contact the editors responsible for this story: Keith Perine at kperine@bloomberglaw.com; Gregory Henderson at ghenderson@bloombergindustry.com

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