Part I: Ruling Out Loud

Last Monday, the U.S. Supreme Court declined to review Structured Asset Sales, LLC v. Sheeran, where the Second Circuit and the lower court have held that Ed Sheeran’s Thinking Out Loud did not infringe Marvin Gaye’s Let’s Get It On. Structured Asset Sales LLC petitioned the Court’s review, arguing that the Second Circuit improperly relied on the U.S. Copyright Office’s administrative guidance post-Chevron, when the court concluded the scope of copyright to be limited to the sheet music. The Supreme Court declined to take up the case, offering no additional comment on its refusal to review, as is typical.

This last chapter of the legal battle may seem dry: centered as it is on technical arguments about the scope of protection under the now repealed Copyright Act of 1909 (discussed in Part I). Yet these technicalities still define the copyright protection for music works registered under the 1909 Act. In the sections below, we’ll shift to the more intriguing aspects of the lawsuit, including the disturbing backstory of how this lawsuit came to be (Part II), the underlying question of whether basic elements of music are copyrightable (Part III), and a final reflection on what the future holds for human authors (Part IV).

The Supreme Court’s denial put the final nail in the coffin for Structured Asset’s years-long campaign to argue that Let’s Get It On’s copyright should extend beyond the sheet music deposited with its registration, specifically, the court should admit the sound recording of the song as well as expert testimony regarding the recording as evidence.

The Second Circuit in December 2024 already denied a petition for panel or en banc rehearing of its decision affirming the lower court’s ruling that the Copyright Act of 1909 only protected Let’s Get It On‘s sheet music. The Second Circuit and lower court judges found expert testimony inadmissible when it went beyond the sheet music deposited with the copyright registration for the song. This mirrors the decision from March 2020 in Griffin v. Sheeran—a.k.a. the “first” Let’s Get It On versus Thinking Out Loud case filed back in 2016. 

The Ninth Circuit has examined this exact issue back in 2020 in Skidmore v. Led Zeppelin, where it was alleged Led Zeppelin copied the intro of Stairway to Heaven from the lesser-known song Taurus. The court held that the Taurus sound recording cannot be heard by jurors “[b]ecause the deposit copy defines the four corners of the Taurus copyright,” and eventually ruled in favor of Led Zeppelin.  

At the end of the day, the Supreme Court’s refusal to review Structured Asset Sales, LLC v. Sheeran was not surprising. The rule that sound recordings are not covered by copyright registrations that only contained sheet music was established as early as the 2015 Blurred Lines case. In that case, Williams and Thicke successfully prevented a sound recording of Gaye’s Got to Give it Up from being played during the trial, because the song’s copyright covered only the deposited sheet music and not Gaye’s recording. (Although this issue did not end up influencing the Ninth Circuit’s final holding.)

Part II: The Disturbing Story of Pullman

Even though Ed Sheeran has been harassed by meritless copyright lawsuits before, this case brought by Structured Asset is especially troubling, for it began as a second bite at the apple. It all started when Judge Stanton of the Southern District of New York refused to add Structured Asset as a plaintiff in the Griffin case, because Structured Asset waited two years to make the request to join. Undeterred by the judge’s refusal, Structured Asset came back with a new lawsuit which pretty much repeats the same claims as Griffin. 

It is certainly tempting to target a prominent artist like Ed Sheeran. While statutory damages are often criticized as excessive when compared to real-world harm, in Sheeran’s case, they are the least of the artist’s concern. Because of his extraordinary commercial success, a claim for disgorged profits could amount to millions. Even more enticing for would-be plaintiffs is the likelihood that a busy, high-earning artist—like Sheeran—might choose to settle quickly out of court, agreeing to pay a substantial sum simply to avoid the time, cost, and disruption of prolonged litigation. 

Such legal arbitrage certainly should not be encouraged. A good copyright system should protect and incentivize creativity—it should encourage writers to write, painters to paint, musicians to make music. We want to allow creators to thrive in the copyright ecosystem we have built with our laws, so that the public can benefit from an abundance of creations. Yet when copyright enforcement becomes a mere tool for profit generation by investment firms—rather than a means of encouraging creative expression, it negates the very purpose of the system. In such cases, copyright serves not as a safeguard for artists, but a weapon against them.

Structured Asset notably does not create any popular songs—nor any other cultural goods—to enrich our society. Structured Asset Sales LLC was founded by David Pullman in the late 1990s when he introduced using copyrighted works as collateral for bonds—securitizing and selling future royalties to musical works he previously bought from musicians. Musicians such as David Bowie, Ashford & Simpson, James Brown, and The Isley Brothers would sell the rights to their future royalties to Pullman in exchange for upfront payment. In a similar vein, Structured Asset bought one ninth of the copyright to Let’s Get It On from Clef Michael Townsend (another of Gaye’s co-author’s children, not the one that brought the Griffin case), allowing it to pursue a new revenue stream via a shakedown of Ed Sheeran.

It’s worth pausing to acknowledge that most courts have held that owning a fractional interest is sufficient for securing the standing to bring a copyright infringement lawsuit. One recent outlier—though I think a reasonable one—is the Ninth Circuit case, Tresóna Multimedia, LLC v. Burbank High Sch. Vocal Music Ass’n 953 F.3d 638. There, the court found that Tresóna had obtained its interests from individual co-owners without the consent of the other co-owners, and therefore held only non-exclusive licenses—insufficient for the standing to sue. But Tresóna remains the outlier, and under current majority rule, companies like Structured Asset are permitted to pursue copyright enforcement actions even when their ownership share is small and their objectives bear little relation to incentivizing original expression or nurturing a vibrant cultural ecosystem—the very purpose for which copyright law exists.

When a company’s aim is not to protect artists’ original expressions, but to either exhort settlement payment or to inflate the value of financial instruments, it stands to reason that copyright law should not take such a claimant’s side. This is especially true when the claims target elements that form the fundamental building blocks of music that should not be monopolized by anyone. 

Part III: Building Blocks of Music

The first court to rule on the substantive aspect of whether Ed Sheeran’s Thinking Out Loud infringed Marvin Gaye’s Let’s Get It On was in the Griffin case. Judge Stanton in Griffin held that commonplace chord progression and harmonic rhythm are not copyrightable.

Two weeks after the Griffin decision was issued, Judge Stanton granted Sheeran’s motion for reconsideration of summary judgment in the Structured Asset case. Reiterating his reasoning in the Griffin decision, the judge observed:

It is an unassailable reality that the chord progression and harmonic rhythm in “Let’s Get It On” are so commonplace, in isolation and in combination, that to protect their combination would give “Let’s Get It On” an impermissible monopoly over a basic musical building block. “Let’s Get It On’s” chord progression was used at least twenty- nine times before appearing in “Let’s Get It On” and was in another twenty-three songs before “Thinking Out Loud” was released. 

When the Second Circuit court affirmed Judge Stanton’s summary judgment order that a four-chord progression and a syncopated harmonic rhythm are not copyrightable, it similarly reasoned that:

Even when combined, the four-chord progression and syncopated harmonic rhythm at issue are too unoriginal for copyright protection. Plaintiff failed to rebut evidence that this same combination appears in well-known songs predating Let’s Get It On, leaving no triable issues of fact as to the originality of the alleged combination. And no reasonable jury could find that the two songs, taken as a whole, are substantially similar in light of their dissimilar melodies and lyrics. 

The substantive holding that common chord progression is uncopyrightable represents a cornerstone in our copyright jurisprudence: Copyrighted creative works can nevertheless contain uncopyrightable elements that are free for everyone to use. In terms of music copyright, we have seen this important principle repeatedly reaffirmed: such as with the common chord progression in the Ed Sheeran Thinking Out Loud cases, the ostinato in the Katy Perry Dark Horse case, and the descending chromatic melody in the Led Zeppelin Stairway to Heaven case.

There has been ample case law holding that artists remain free to use common elements in music. The appeals court in the Led Zeppelin Stairway to Heaven case observed: 

Authors borrow from predecessors’ works to create new ones, so giving exclusive rights to the first author who incorporated an idea, concept or common element would frustrate the purpose of the copyright law and curtail the creation of new works.

In the Blurred Lines case, U.S. Circuit Judge Jacqueline Nguyen in her dissent criticized the court for allowing Gaye’s estate to “accomplish what no one has before: copyright a musical style”: 

‘Blurred Lines’ and ‘Got to Give It Up’ … differ in melody, harmony, and rhythm. Yet by refusing to compare the two works, the majority establishes a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere.

This dissenting opinion was later quoted extensively in the 2020 ruling by the appeals court in the Led Zeppelin Stairway to Heaven case.

Part IV: Final Thoughts

Copyright law exists to protect human authorship. In Griffin (the “first” Let’s Get It On versus Thinking Out Loud case), there still remained a touch of humanness in the dispute: the plaintiff was Kathryn Townsend Griffin, the daughter of the co-author for Let’s Get It On.  

She and Ed Sheeran shared a hug after their lawsuit was over, and Sheeran—known for his kindness—even invited her to one of his concerts. 

I doubt Ed Sheeran will be hugging Pullman.

Lawsuits such as Structured Assets reflect a growing threat to artists and their creative endeavors. As Sheeran himself put it: “We need to be able to write our original music and engage in independent creation without worrying at every step of the way that such creativity will be wrongly called into question.”

Surely we can all agree with Sheeran on this: copyright should foster human creativity, not corporate greed.