A federal appeals court 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.’
In a 28-page decision, a three-judge panel from the US Court of Appeals for the 2nd 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 US 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 rejected arguments from Structured Asset Sales, a music investment company that owns an 11.1% 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.
The appeal was being watched by copyright scholars, who have said 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.
A key dispute had been whether the “scope” of the copyright in ‘Let’s Get It On’ – exactly which parts of the song were protected by law – was defined by its written deposit copy or whether jurors could also consider additional elements from Gaye’s recording. The district judge, citing a similar case involving Led Zeppelin’s ‘Stairway to Heaven,’ ruled that only the written notes on the deposit copy were part of the copyright. Lawyers for Sheeran argued 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.
As the commercial recording of ‘Let’s Get It On’ could not be played at trial, jurors heard an electronic “realisation” of the tune with robotic voice.
