A live performance from Ed Sheeran, whose legal team is urging the Supreme Court to reject a cert petition in a marathon ‘Thinking Out Loud’ copyright dispute. Photo Credit: Mark Kent
Defendants including Sheeran just recently made their position clear in a 31-page brief opposing an appeal from Structured Asset Sales (SAS). The latter has an interest in the Marvin Gaye hit “Let’s Get It On” and, alleging unauthorized overlap with the aforementioned Sheeran track, fired off a related infringement suit the better part of a decade ago.
Technically, this marathon legal battle is distinct from the similar complaint spearheaded by the estate of “Let’s Get It On” writer Ed Townsend. An appellate court closed out 2024 by denying a rehearing request in the SAS action – evidently laying the groundwork for the filing party to take the matter to the Supreme Court.
Ultimately amended by the 1976 Act, the more than century-old copyright law required “two complete copies of the best edition” of a published work (meaning sheet music here) to be deposited with the Office to receive protection.
The 1976 update officially brought recordings into the fold (effective in 1978, that is) for compositional deposit copies, but “Let’s Get It On” was registered in 1973. And while it probably doesn’t need saying given the nearly eight years of litigation at hand, the point proved important.
Though the complaint alleged infringement of certain elements (like the bass line) contained in the “Let’s Get It On” recording, the courts in many more words found that the claims must be confined to the actual handwritten deposit copies.
“The Copyright Office has claimed that the 1909 Act registration deposit strictly delimits the scope of copyright in a work,” SAS vented in its initial cert petition. “In fact, nothing in that Act states that the deposit defines scope—no court ever limited a copyright based on a deposit for over 100 years until Led Zeppelin.”
“For over a century,” Team Sheeran wrote, “as evidenced by consistent case law and even by copyright treatises, there has been nothing ‘unsettled’ about the scope of copyright protection for musical works being limited to what is literally expressed in the ‘complete copies’” deposited with the Copyright Office under the 1909 Act.
“The self-serving free-for-all Petitioner posits would foment vast uncertainty and encourage rampant speculation, decades after the fact (and, in many cases, such as this one, long after the death of the composer in question), regarding the composer’s supposed intentions,” Sheeran and others continued.
“It would expand copyright infringement litigation to encompass elements appearing nowhere in deposited sheet music under the 1909 Act, nor in deposited recordings under the 1976 Act, so long as an expert is willing to suggest that such elements can be implied,” the respondents drove home.
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