Photo Credit: Ed Sheeran by Stephen Lavoie / iRocktography
A federal court has officially denied a request to rehear an appeal of a copyright infringement complaint centering on Ed Sheeran’s “Thinking Out Loud.”
The U.S. Court of Appeals for the Second Circuit just recently handed down the corresponding order, after siding with Ed Sheeran and other defendants at the top of November.
One of multiple copyright complaints levied over Marvin Gaye’s “Let’s Get It On,” this particular action came from Structured Asset Sales (SAS). The company reportedly acquired an interest in the classic work from Clef Michael Townsend, the son of co-writer and co-producer Ed Townsend.
Technically distinct from the Townsend estate’s similar suit, the SAS litigation initiated in 2018 and was dismissed with prejudice in May 2023 – the same month in which Sheeran beat the Townsend action at trial.
The presiding judge chalked up the SAS dismissal to the allegedly unprotectable nature of the chord progressions in question. Besides affirming the unprotectable determination, the appeals court concurred with prior findings that the plaintiff could only allege infringement (and introduce related evidence) with regard to components of the “Let’s Get It On” sheet music submitted to the Copyright Office.
Among other things, that narrowed the case’s scope to exclude the recording’s bass line, which doesn’t appear in the Copyright Office submission.
“[W]e affirm the district court’s exclusion of evidence—including expert testimony—about anything beyond the four corners of the Deposit Copy,” the appellate court summed up in early November, “because the scope of a copyright in a musical work registered under the Copyright Act of 1909…is limited to the elements found in the copy of the work deposited with the Copyright Office.”
For obvious reasons, the finding didn’t sit right with SAS, which pushed for a rehearing across nearly 50 detail-oriented pages.
“Under the facts of this case,” the plaintiff company wrote, “it is particularly bizarre to contemplate that the scope of protection for the musical composition should be limited to the handwritten sheet music when the sound recording was already deposited at the U.S. Copyright Office a month before the handwritten sheet music deposit came in.”
Bizarre or not, the relevant appellate court is evidently uninterested in reviewing the decision. “The panel that determined the appeal has considered the request for panel rehearing,” the concise denial order notes, “and the active members of the Court have considered the request for rehearing en banc.”
Time will reveal how the order (and the undoubtedly costly suit at hand) affects the infringement-litigation landscape moving forward. As things stand, copyright complaints are continuing to pour in – though some defendant acts, like Mariah Carey, look to be proceeding towards relatively quick resolutions in their favor.