Yeah.
Today’s cert-denial of one case almost certainly finishes Structured Asset Sales’ one other remaining case and its numerosity strategy.
“24-981 Structured Asset Sales, LLC v. Edward Christopher Sheeran — Petition DENIED.”
The Supreme Court will not do the certiorari thing. The Court lets stand the Second Circuit’s November 2024 decision affirming Judge Louis Stanton’s dismissal of Structured Asset Sales’ (SAS) composition-infringement lawsuit. Nothing to latch onto — just “No.” And most of the reporting today noted there’s another case out there, stayed and awaiting the conclusion of this one. But that one is likely dead in the water, too. I’ll explain.
| Case | Plaintiff | Basics | Result |
|---|---|---|---|
| Townsend heirs v. Sheeran (jury 2023) | Marvin Gaye co-writer Ed Townsend’s heirs | Thinking Out Loud copies the chord progression & harmonic rhythm in the sheet-music deposit copy of Let’s Get It On | Sheeran won. You might remember he played his guitar in court? |
| SAS I (the one that got cert denied today) | Structured Asset Sales (purchased a piece of Townsend’s composition share) | Same deposit-copy theory as the heirs’ — still limited to the sheet music deposit copy but with a bit more focus on the selection and arrangement of elements approach by plaintiff, which requires more than the couple of elements found on the sheet music. | Dismissed (Stanton 2023) → Affirmed 2d Cir. (2024) → Cert denied by SCOTUS (a few hours ago) |
| SAS II (stayed since 2021) | Structured Asset Sales | Relies on SAS’s 2020 supplemental PA registration of the 1973 master recording to add more elements (esp a bass line, but maybe also some less obviously compositional ones, drum feel, phrasing) and make more plausible a selection-and-arrangement claim | Stayed pending SAS I outcome; now headed for almost-certain dismissal |
In my analysis last year I wrote that SAS’s II’s strategy was “nothing more than numerosity thinking” — an attempt to “get to a higher element count so it could fortify its selection-and-arrangement claim.” And that made all kinds of sense strategically, if not musically. SAS I found itself limited to just a couple of elements that made it to the sheet music deposit copy which according to ancient copyright law, defines the protectable composition in everything before 1972, including Let’s Get it On. From there, the Ninth Circuit in the Stairway To Heaven case said: “A handful of commonplace, unoriginal building blocks—even five of them—does not amount to a protectable selection and arrangement.” (Skidmore v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020) at 1072.) Not to say five is the magic number either — they’d still need to be combined in a sufficiently original way, but hey, baby steps.
Today’s cert denial cements Judge Stanton’s conclusion that:
“The compositional elements SAS points to are too commonplace to be protectable and anything found only on the recording is outside the four corners of the 1909 deposit copy.”
Because today, that holding is now final: It precludes SAS from re-litigating the same copyright-scope question in the stayed recording suit — “collateral estoppel.” (Or something like that 🙂 Once a question is finally decided, the same plaintiff can’t relitigate it in a new suit).
SAS hoped the Supreme Court might reopen the debate over the deposit-copy doctrine that I therefore described last year as “the first defendant in this appeal.” Had the Court granted cert, we might have seen:
But whatever. The court declined, so our post-Skidmore landscape remains: for works registered under the 1909 Act, what’s on the printed page is what’s protected.
“SAS II” might be woken up, probably because Ed asks for it to be, then asks for dismissal, then gets it. That would completely end things legally. Let me one last time try to end things musicologically. If you’re reading this don’t imagine Sheeran gets away with anything because of 1909 copyright act written before we even had recordings.
When I first covered the SAS appeal I wrote:
“Musicologically the notion that ‘Thinking Out Loud’ is substantially similar to ‘Let’s Get It On’ remains completely delusional.”
There’s nothing on the recording that would change this. Sheeran didn’t infringe upon the sheet music or the recording of Let’s Get It On that we all know and love, or the underlying composition. The only hope for SAS II was a Blurred Lines delusion level event at a jury trial.
If you were keeping score, you can chalk this up as a clean sweep for Ed Sheeran, but, as usual, I’d have preferred a less technical ending that better establishes that the generic building blocks of popular music are free for everyone to use. But like I said, it’s an imperfect process.
Brian McBrearty
Musicologize.com – June 16 2025
