The copyright dispute over Ed Sheeran’s song “Thinking Out Loud” has made its way to the Supreme Court’s doorstep. The petition raises questions about judicial deference to administrative interpretations and the scope of copyright protection for musical compositions under the 1909 Copyright Act. In the case, the Second Circuit had sided with Sheeran — affirming dismissal of the infringement claim based largely on a technical limitation of pre-1976 copyright law. Structured Asset Sales, LLC v. Sheeran.
- Rick Beato has a great analysis of the two songs: https://www.youtube.com/watch?v=0kt1DXu7dlo
The underlying dispute centers on allegations that Sheeran’s Grammy-winning “Thinking Out Loud” (2014) infringes the copyright of Marvin Gaye and Ed Townsend’s “Let’s Get It On” (1973). Structured Asset Sales (SAS) owns a partial interest in Townsend’s share and contends that Sheeran copied protected elements from the iconic soul classic.
The Second Circuit’s decision hinged on the fact that the copyright was pre-1976. Under the 1909 Copyright Act, the scope of copyright protection extends only to the elements contained in the “deposit copy” submitted to the Copyright Office at registration. In this case, that meant only the elements in the handwritten sheet music deposited in 1973, not the additional musical elements found in Gaye’s sound recording.
Even though the two songs have quite different melodies, a quick listen easily reveals substantial similarities. The problem for the copyright holder is that the deposit sheet music really just focuses on the melody — the aspect that is different — while similarities are found in the chord progression, base line, and harmonic rhythm.
In rejecting the copyright claim, the Second Circuit explained:
The statute … makes clear that its enforceable protection for musical works is limited to the contents of the ‘complete copy’ of the work filed with the Copyright Office at the time of registration. Extending its protection beyond the ‘complete copy’ would negate the plain meaning of ‘complete.’
This interpretation severely limited what SAS could claim as protected elements, excluding the musical components not explicitly notated in the sheet music.
The SCOTUS petition attempts to a collateral attack — arguing that the Second Circuit improperly deferred to the Copyright Office’s administrative interpretations found in its Compendium of U.S. Copyright Office Practices, violating the Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024). Readers should already be aware that Loper Bright overruled the long-standing Chevron doctrine, declaring that “courts need not and under the APA may not defer to an agency interpretation of the law simply because a statute is ambiguous.” SAS argues that the Second Circuit’s reliance on the Copyright Office’s interpretation of the 1909 Act represents precisely the kind of deference Loper Bright rejected.
The petition particularly asks two questions, paraphrased here:
- Whether the Second Circuit abdicated its judicial responsibility by deferring to an administrative interpretation of the law in violation of Loper Bright.
- Whether the Second Circuit erroneously decided that the “deposit copy” submitted to the Copyright Office for musical compositions under the 1909 Copyright Act defines and limits the legal scope of copyright protection.
In my mind, the case also illustrates the profound difference in copyright protection afforded to musical works under the 1909 Act versus the 1976 Act. Under the latter (effective 1978), composers could submit sound recordings as deposit copies for musical compositions, allowing protection of all elements present in the recording. For works created before 1978, however, the Second Circuit’s approach means that many iconic musical compositions from the 1960s and early 1970s receive significantly narrower copyright protection than later works. This potentially impacts thousands of legacy musical compositions where the recorded performance often contained creative elements not captured in traditional sheet music.
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I’ll note that this is the second case against Sheeran for infringing the same Marvin Gaye song. There was a parallel lawsuit, Griffin v. Sheeran, involving the same songs but different plaintiffs. SAS had attempted to join the original lawsuit but was denied leave to intervene. Griffin v. Sheeran, 767 F. App’x 129 (2d Cir. 2019). Sheeran won a jury verdict in the Griffin case, leading to the district court to award summary judgment for Sheeran in the SAS case.