In copyright infringement action regarding Ed Sheeran’s “Thinking Out Loud,” district court holds that unprotectable musical elements allegedly copied from Marvin Gaye’s “Let’s Get It On” were not sufficiently numerous to warrant copyright protection when combined with one another, granting motion for reconsideration and awarding summary judgment to Sheeran and co-defendants.
In 2018, plaintiff Structured Asset Sales LLC (SAS), the holder of an 11.11% beneficial interest in the right to receive royalties from the 1973 Marvin Gaye song “Let’s Get It On,” asserted a claim for copyright infringement against musician Ed Sheeran and his collaborators, publishers and distributors, alleging that Sheeran’s 2014 song “Thinking Out Loud” infringed the copyright in the musical composition for Gaye’s 1973 song. SAS argued that Sheeran copied the selection and arrangement of a chord progression and harmonic rhythm within the earlier song.
The court initially denied defendants’ motion for summary judgment, holding there was a genuine dispute as to whether the allegedly copied elements from “Let’s Get It On” were sufficiently original and creative to warrant copyright protection. Defendants subsequently moved for reconsideration, and the court granted that motion, awarding summary judgment and dismissing plaintiff’s claim.
In seeking reconsideration, defendants argued that the court erred in its prior denial of their motion for summary judgment because it overlooked the numerosity requirement for “selection and arrangement claims” of copyright infringement, which allege copying of the manner in which various unprotectable elements are selected and arranged in a creative work. To satisfy the numerosity requirement, a plaintiff must show that the arrangement it seeks to protect includes a certain minimum number of unprotectable elements. As the court explained, this requirement “reinforces the constitutional requisite that a copyrighted work, or piece of a work, [is] original enough to warrant protection,” because “[r]equiring numerous elements … ensures [copyright law] is not being used to protect combinations that occur routinely without any minimal creative contribution attributable to the author.”
According to the court, while the numerosity requirement is clearly established under Ninth Circuit law, it has “been alluded to, but not strictly followed, in the Second Circuit.” Since the court’s previous summary judgment decision, however, other courts in the Second Circuit have started to weigh the numerosity of the elements when deciding whether their combination should be protected. Thus, the court concluded that it had erred in denying defendants’ prior motion for summary judgment without weighing whether and how to apply the numerosity requirement.
Turning to the merits of defendants’ renewed motion for summary judgment, the court concluded that the two elements that defendants allegedly copied from “Let’s Get It On”—the chord progression and harmonic rhythm—were not sufficiently numerous to make their combination eligible for copyright protection. While acknowledging there “is no bright-line rule dictating the threshold over which a specific number of unprotectable elements in a work must pass to become sufficiently numerous,” the court nevertheless found that “in the context of a musical composition, ‘numerous’ requires more than just a commonplace chord progression and harmonic rhythm to warrant protecting their combination.” The court expressed the view that protecting an arrangement of only two allegedly copied elements might “read the numerosity requirement of the law.” The court pointed to several cases in which other courts had held that the selection and combination of at least three unprotectable musical elements was insufficiently original.
As a final matter, the court noted that the elements for which SAS sought protection were commonplace, citing to various examples discussed in defendants’ expert report. It noted the chord progression at issue was used at least 29 times before appearing in “Let’s Get It On” and in another 23 songs before “Thinking Out Loud” was released. The chord progression was so ubiquitous, the court noted, that it had been taught for many years as a popular chord progression in introductory books on how to play guitar and piano. As to the harmonic rhythm at issue, the court observed it had been used in at least eight other songs before “Let’s Get It On” and in another 15 songs before the release of “Thinking Out Loud.” Given the ubiquity of the elements, the court found that “to protect their combination would give ‘Let’s Get It On’ an impermissible monopoly over a basic musical building block.” As a result, the court held that the combination of these two elements was too commonplace to merit copyright protection as a matter of law.
Summary prepared by Frank D’Angelo and Edward Delman