OPINION & ORDER Plaintiffs, claiming to own a partial interest in the copyright of the musical composition “Let’s Get It On” (“LGO”) as heirs of Edward B. Townsend, brought this action for copyright infringement. They allege that a musical composition “Thinking Out Loud” (“TOL”), co-written by defendant Edward Christopher Sheeran and non-party Amy Wadge, infringes their copyright in LGO. Defendants maintain that the deposit copy (not the sound recording) of LGO defines the scope of the copyright, that the two works are not substantially similar, that any alleged similarities concern unprotectable and commonplace elements, and that plaintiff Kathryn Townsend Griffin lacks standing to bring suit. They move for summary judgment dismissing the complaint on those grounds. The parties have submitted reports by expert musicologists, who dispute whether substantial similarities exist between the two works and whether those alleged similarities were commonplace prior to LGO.Regardless of whether the deposit copy or sound recording of LGO defines the scope of the composition’s copyright, material facts are in dispute: whether the harmony and harmonic rhythm were commonplace prior to LGO, and whether numerous musical elements in the two works are substantially similar and so uncommon that an ordinary observer would recognize TOL as having been appropriated from LGO. Accordingly, defendants’ motion for summary judgment (Dkt. No. 66) is denied.BACKGROUNDLet’s Get It OnPlaintiffs own partial interests in the musical composition copyright of the song LGO. They claim to be heirs of Townsend, who co-wrote LGO with Marvin Gaye in 1973.1 Townsend created the music and lyrics for LGO while he was sitting at the piano. The following day, Gaye agreed to record the song. Gaye recorded what would become the first commercially released sound recording of LGO on March 22, 1973.On July 17, 1973, music publishers filed a copyright application for LGO with the U.S. Copyright Office. The copyright application identifies Townsend as the sole author of LGO, and identifies February 14, 1973, as the date of publication of LGO.Sheet music for LGO (the “deposit copy”) was deposited in support of the copyright application. The first page of the LGO deposit copy appears as follows:Farkas Decl. (Dkt. No. 67, Ex. 12 at 8).The parties agree that the LGO deposit copy includes the composition’s key, meter, harmony (i.e., chord progressions), rhythm, melody, lyrics, and song structure, but they dispute whether the deposit copy also implies or includes other musical elements. Add’1 Rule 56.1 Stmt. (Dkt. No. 79)
36-37. Defendants claim that the deposit copy does not include percussion/drums, bass-guitar, guitar, Gaye’s vocal performance, horns, flute, piano, strings, or any of the performance elements — such as the tempo in which to perform the composition — contained in the LGO recording. Plaintiffs claim that the chord progressions on the deposit copy imply the bass-line and guitar, by indicating the rhythm and notes for those elements. Plaintiffs also claim that the melody in the deposit copy is a close transcription of Marvin Gaye’s actual vocal performances on the recording, and that tempo is a compositional element as well as a performance element.The U.S. Copyright Office registered LGO for copyright under Registration No. EP 314589.LGO has become one of the most famous songs in R&B and soul music history.Thinking Out LoudOn or about February 3, 2014, defendant Ed Sheeran and non-party Amy Wadge co-authored the musical composition TOL at Ed Sheeran’s home in Suffolk, England. On February 5, 2014, Sheeran recorded what would become the commercially released version of TOL. That commercially released recording includes electric guitar, bass-guitar, piano, organ, lyrics, vocals, and percussion/drums. TOL has hit the number one position on the national charts in eleven countries since 2014, and it has been certified platinum numerous times by the Recording Industry Association of America.STANDARD“The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In deciding a motion for summary judgment, the district court “must construe the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor.” Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998). Courts may determine non-infringement of a copyright as a matter of law on a motion for summary judgment, although “the issue of substantial similarity is frequently a fact issue for jury resolution.” Warner Bros. Inc. v. Am. Broad. Cos., Inc., 720 F.2d 231, 239-40 (2d Cir. 1983) (citations omitted). Expert musicologists may opine on probative or objective similarities between the works and they can provide guidance by translating musical notation and musical concepts into plain English, but they may not opine that a defendant’s work is substantially similar to the plaintiff’s work. Laureyssens v. Idea Grp., Inc., 964 F.2d 131, 140 (2d Cir. 1992) (expert testimony is “irrelevant when the issue turns to unlawful appropriation”).DISCUSSIONScope of Copyright ProtectionAs a threshold matter, the parties disagree over the metes and bounds of the copyright in LGO. Defendants argue that the LGO deposit copy defines the scope of the copyright protection. Plaintiffs argue that the composition is embodied on the Gaye recording, which is the first mechanical reproduction of LGO.That issue is the subject of the supplemental authority submitted by defendants, Skidmore for Randy Craig Wolfe Tr. v. Led Zeppelin, 905 F.3d 1116 (9th Cir. Sept. 28, 2018). There, the Ninth Circuit discussed the point fully and thoughtfully, and held that, for an unpublished musical composition under the 1909 Act, “the deposit copy of ‘Taurus’ [the plaintiff's work], rather than a sound recording, defined the scope of the protectable copyright.” Id. at 1131. The court was persuaded by “cases that, in the context of discussing the current copyright scheme, opined that one of the purposes of the deposit requirement is to provide ‘sufficient material to identify the work in which the registrant claims a copyright.’” Id. at 1133 (citations omitted).The question whether this Circuit would concur is open, and unnecessary for decision at this point, for the outcome of this motion is the same under either view. Hearing the percussion and bass increases the perception of similarity between the works.Commonplace Musical ElementsLaw“To qualify for copyright protection, a work must be original to the author.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345 (1991) (citations omitted). The Second Circuit has explained when a work’s originality suffices to be copyrightable:As the Supreme Court’s decision in Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 111 S. Ct. 1282, 113 L.Ed.2d 358 (1991), makes clear, a work may be copyrightable even though it is entirely a compilation of unprotectible elements. See id. at 362, 111 S. Ct. at 1296 (even telephone directory may be copyrightable if its listings are selected, coordinated, or arranged in an original fashion). What is protectible then is “the author’s original contributions,” id. at 350, 111 S. Ct. at 1290-the original way in which the author has “selected, coordinated, and arranged” the elements of his or her work. Id. at 358, 111 S. Ct. at 1294.Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1003-04 (2d Cir. 1995).In the context of musical compositions, common elements are not entitled to copyright protection because they are no longer original and already in the public domain. Those unprotectable elements include key, meter, tempo, common song structures, common chord progressions, common melodies, and common percussive rhythms. See McDonald v. West, 138 F. Supp. 3d 448, 454 (S.D.N.Y. 2015), aff’d, 669 F. App’x 59 (2d Cir. 2016) (tempo, common rhythms, song structure, and harmonic progressions); Jean v. Bug Music, Inc., No. 00-cv-4022 (DC), 2002 WL 287786, at *6 (S.D.N.Y. Feb. 27, 2002) (common melodic sequence); Tisi v. Patrick, 97 F. Supp. 2d 539, 543-44 (S.D.N.Y. 2000) (key, common structure, harmonic progression, and percussive rhythm).Courts “treat the question whether particular elements of a work demonstrate sufficient originality and creativity to warrant copyright protection as a question for the factfinder.” Matthew Bender & Co. v. W. Pub. Co., 158 F.3d 674, 681 (2d Cir. 1998). Where experts disagree as to whether a particular musical element is original, summary judgment is inappropriate. See Ulloa v. Universal Music & Video Distribution Corp., 303 F. Supp. 2d 409, 413-14 (S.D.N.Y. 2004) (“It would be improper for this Court, on a motion for summary judgment, to draw its own conclusions from this competing evidence regarding the originality of the Vocal Phrase.”).ApplicationThe parties and their experts agree that many of the elements in LGO are protectable, but they disagree as to whether the I-iii-IV-V chord progression and harmonic rhythm present in both compositions are unprotectable as commonplace musical elements. See Add’1 Rule 56.1 Stmt.
