With the Second Circuit’s Nov. 1, 2024 decision in Structured Assets Sales, LLC v. Sheeran, et al., __ F.4th __, 2024 WL 4644955 (2d Cir. 2024)(”SAS”), the court joined the Ninth Circuit to hold that the scope of copyright in a pre-1978 musical composition is defined by, and limited to, the (often sketchy) musical notation that was submitted to the copyright office under the deposit requirements of the 1909 Copyright Act.

Plaintiff in SAS owned a partial share of the song “Let’s Get It On,” made popular in a hit 1973 recording by Marvin Gaye. It asserted that Ed Sheeran’s hit 2014 song “Thinking Out Loud” was substantially similar to “Let’s Get It On,” specifically with respect to (a) a bass line that can be heard on the recording of “Let’s Get It On” but that is not explicitly notated in the deposit copy (the “Implied Bass Line”); (b) the basic chord progression (the “Progression”); (c) the syncopated placement of that progression relative to the rhythmic structure of the song (the “Harmonic Rhythm”); and (d) the overall selection and arrangement of the above elements.

The melody and lyrics of the two songs were not alleged to be similar. After numerous procedural complications defendants prevailed on a motion for summary judgment, and the Second Circuit affirmed.

The Implied Bass Line and the Led Zeppelin Rule 

Plaintiff in SAS alleged that “Let’s Get It On” and “Thinking Out Loud” shared a bass line, clearly audible in the recording of “Let’s Get It On,” and that this bass line should be considered by a jury in determining substantial similarity. Defendants successfully argued, however, that the bass line was not part of plaintiff’s copyrighted work because it was not included in the notated “lead sheet” that the songwriter submitted to the copyright office in 1973. Defendants cited Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) (en banc), in which an en banc panel of the Ninth Circuit recently reached a similar conclusion in a case involving Led Zeppelin’s classic-rock anthem “Stairway to Heaven.”

The deposit copy is important for music copyright registrations filed before the current act took effect in 1978, because under the 1909 act the copyright office only accepted deposit copies in written form. These written copies generally consisted of musical notation of the main melody in conventional five-line staff format, together with lyrics and chord symbols, as was the case with “Let’s Get It On.”

Plaintiff in SAS conceded that the bass line per se was not notated in the deposit copy for “Let’s Get It On,” but proffered expert testimony to argue that it could be inferred from the chord symbols that were included in the deposit copy. According to plaintiff’s expert, the “simplest and most obvious bass line that one versed in reading music would play if asked to play what is on the [deposit copy]” would be to select the lowest note of each of the chords shown by the symbols, and that is in fact the bass line on the Marvin Gaye recording.

Although the court acknowledged that “[t]here may be some instances in which expert testimony of this sort can aid the trier-of-fact in interpreting what, precisely, is represented in the four corners of the deposit copy,” it did not find that the lower court’s exclusion of the testimony on a Daubert motion was manifestly erroneous.

The court also emphasized that the 1909 act required a “complete copy” to be deposited for registration of a musical composition, so it would be improper to consider any element of the work that was not expressly included within the deposit copy. The court further noted that the Compendium of U.S. Copyright Office Practices that was in effect at the time stated that “protection extends only to the material actually deposited,” so “a musical work registered under the 1909 Act is the ‘complete copy’ filed with the copyright office” (emphasis original).

The Progression, the Harmonic Rhythm, and the Combination

Having determined that the Implied Bass Line could not be considered part of the Plaintiff’s work, the Second Circuit in SAS analyzed the remaining elements – the Progression and Harmonic Rhythm – to determine whether these elements might be protectable, either individually or in combination.

The Progression consists of four chords, Eb – Gm – Ab – Bb, which the court found to be common in many works of popular music, and which even plaintiff conceded was “not protectable on its own.” Plaintiff argued, however, that the Progression was protectable in combination with the Harmonic Rhythm, in which the second and fourth chords begin slightly ahead of the basic pulse of the song.

Defendants’ expert testified to the contrary that there was “nothing particularly novel, unique or distinctive about combining the . . . anticipation technique” with any particular chord progression, “let alone a commonplace chord progression.” Plaintiff’s expert did not provide affirmative evidence to counter this testimony, but asserted that the combination of the Progression and Harmonic Rhythm was “unmistakable” and “noteworthy.”

Although originality for copyright purposes does not require that an element be novel, unique, distinctive, unmistakable or noteworthy, the court noted that defendants’ expert had identified “at least two prior songs featuring the same combination of elements.” Such a showing might not establish that the earlier works were a common source for both parties, but did support the defendants’ argument that the similarities between the works “were based on garden variety elements.”

Applying a “more discerning” ordinary-observer standard, as is customary for evaluating claims based on the selection and arrangement of unprotectable elements, the court concluded that “[t]he 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.” Again the court cited to the Led Zeppelin case, Skidmore, 952 F.3d at 1075-76, which cautioned against “deem[ing] substantially similar two vastly dissimilar musical compositions, novels, and paintings for sharing some of the same notes, words, or colors.”

In a footnote, the Second Circuit declined to address the District Court’s additional conclusion that a selection and arrangement of elements may be unprotectable per se simply because the plaintiff did not combine a sufficiently large number of elements. For the Second Circuit in SAS, there is no bright-line minimum, below which protection is categorically unavailable. Although “the number of elements in combination is an aspect of the distinctiveness of music, originality is not a concept that is easily reducible to a simple test like numerosity.”

CONCLUSION

SAS is not the only recent case to have involved the alleged infringement of “Let’s Get It On” by Ed Sheeran’s “Thinking Out Loud.” As it was progressing through the courts, having survived a motion for summary judgement, another action, brought by other fractional owners of “Let’s Get It On,” was tried to a jury and resulted in a finding of non-infringement on May 4, 2023.

Twelve days later, the District Court in SAS granted defendants’ motion for summary judgment, which it had previously denied. Ironically, the principal reason the District Court gave for granting defendants’ motion for reconsideration was the District Court’s conclusion that it had previously “overlooked” the issue of numerosity – a concept the Second Circuit ultimately brushed aside as an inapposite oversimplification. As Led Zeppelin might say, “really makes me wonder ….”

Copyright © 2024 Robert W. Clarida and Thomas Kjellberg

Robert W. Clarida is a partner in the New York law firm of Reitler, Kailas & Rosenblatt LLC and the author of the treatise Copyright Law Deskbook (BNA). He is co-presenter, with Thomas Kjellberg, of “Recent Developments in Copyright,” a review of copyright decisions delivered each year at the annual meeting of the Copyright Society of the U.S.A., and is a past Trustee of the Copyright Society, a past Board member of the American Intellectual Property Law Association and former chair of the Copyright and Literary Property Committee of the Association of the Bar of the City of New York.

Thomas Kjellberg is of counsel to the New York law firm of Cowan, Liebowitz & Latman, P.C. He is a past Trustee of the Copyright Society and former chair of the ABA Copyright Office Affairs Committee, and is the chief author of the annual review of copyright decisions published each year in the Journal of the Copyright Society of the USA and delivered, with Mr. Clarida, at the Copyright Society’s annual meeting.