Not quite two weeks after Ed Sheeran was found not to have copied Marvin Gaye’s “Let’s Get It On,” the same judge, yesterday, dismissed a second case with a different plaintiff, Structured Asset Sales, which owns a stake in “Let’s Get It On” as well.
“Let’s Get It On” v. “Thinking Out Loud” is the biggest case in a long time. Had it gone wrong, it would’ve been THE biggest of all time. It is bound to leave its mark. And I’ve read a lot of “takeaways,” as we are all trying to put this in context, but, so far, nothing satisfying. The takeaways I want are about how this ever made it to trial, and what we are going to do about this “selection and arrangement” nonsense. I may have gotten a smidgen of both today.
Precise facts were, for some reason, elusive in the day or so following the Thinking Out Loud versus Let’s Get It On verdict. Despite what we all read, Sheeran was not found “not guilty,” but rather “not liable.” We don’t go around pronouncing guilt in civil trials. And no, the Marvin Gaye family are not serial plaintiffs; they weren’t even in the room. Nor was David Pullman’s Structured Asset Sales in the room, though they, too, were suing Sheeran, separately. (Twice. There’s still one more.)
Structured’s now dismissed case, it seemed to me, was very much hitched to the wagon driven by the Townsend estate. And indeed, a week later, the “sister” to the Townsend case, as this ruling calls it, has been dismissed.
Rulings like this are consistently a good read. My favorite part of this one so far is where Judge Stanton refers to the “Stairway To Heaven” ruling “as one of the clearest articulations of how copyright law applies to musical compositions,” which I suppose confirms that he hasn’t read my own “The Stairway Ruling Solves Nothing” articles, either part one or part two?? But I understand what he means. For one thing, the Stairway ruling, lovingly known precedentially as “Skidmore” clarified that the scope of copyright protection (for these pre-1976 works) extends only to the deposit copy registered with the copyright office, and not to the recording of the work. I suppose Attorney Francis Malofiy (the attorney for, let’s say, “Taurus,” in the Stairway trial) might take some pride in that since he argued the point that the deposit copy is lousy evidence, which of course it is, the Ninth Circuit got to expressly say they disagreed or perhaps, regardless, just don’t care. So here we are, referencing their “clearest articulation,” for better or worse. Further, according to Judge Stanton’s ruling, Skidmore also “laid out a numerosity requirement for selection and arrangement copyright claims holding that protection applies to “a combination of unprotectable elements… only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.”
But the stage in “Thinking Out Loud” vs “Let’s Get It On” that I remember best is when the judge declined to dismiss the case, saying there was “no bright-line rule” that governed whether just two elements (each unprotectable on their own) could not be numerous enough to sustain a selection and arrangement claim. And that question is really what a two-week trial was about. Here, however, Judge Stanton cites Nwosuacha v. Glover (which would be Childish Gambino’s recently dismissed “This Is America” case) and that court, according to Stanton, implied a high threshold of numerosity in that case, finding that a combination of EIGHT unprotected musical elements was “categorically ineligible for copyright protection.” And perhaps based on this, Stanton seems to say that he erred in disregarding the defendants’ motion to dismiss “without weighing whether and how to apply the (numerosity) requirement.”
This SAS ruling first reiterates the idea that brought Sheeran to New York — that there’s no bright-line rule dictating the threshold, but then Judge Stanton says that “common sense dictates 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.
And then comes the piece that I personally have been waiting for, which is “what is the takeaway regarding Selection and Arrangement claims in music copyright?” So far, I’ve found Selection and Arrangement corrupting and “Let’s” versus “Thinking” was a great example of why. Supposedly we evaluated the originality and protectability of a “combination” of two “elements,” a chord progression and the rhythm in which it is played. But there is no way to realize a chord progression in the absence of a rhythm in which it is played! These aren’t two distinct elements, they’re one. They’re not “arranged,” but unavoidably combined.
So thanks to Judge Stanton for continuing…
“That is especially true here where the chord progression and the harmonic rhythm (how the chord progression is played) in Let’s Get It On do not form a pattern, but instead essentially merge into one element.”
The decision continues, “At some level, every work is the selection and arrangement
of unprotectable elements.” (And hey, Google says I wrote that same truism that in 2018 and again during the Sheeran trial, so maybe his honor reads me after all?)
And then…
“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 building block.”
Opinion and Order by Louis Stanton, the judge in both the SAS and Townsend Estate cases against Sheeran.
The order goes on to describe the mountain of evidence brought to bear in this case, including prior art that shows the chord progression, or the harmonic rhythm, and a handful of songs that contain both, proving that nothing in the chords, harmonic rhythm, or the combination thereof was original such that “Let’s Get It On” could enjoy protection of those elements by copyright. So what I’m left to wonder is, when did all of this come to light? Or, when did it become available to or impressive upon the judge such that it would lead to the now evidently unassailable reality that it did not just a couple of months back?
There is one other factoid in this decision at which I’m bemused.
This remark:
“Defendants’ experts also identified, undisputed by SAS’s expert, at least four songs that were released prior to “Let’s Get It On,” that used virtually the same combination.”
And then it names “Georgy Girl” and “Since I Lost My Baby,” both of which were on an earlier post here on Musicologize. Then also “Downtown” and “Get Off Of My Cloud,” which we can safely assume are Petula Clark and the Rolling Stones, respectively. Neither of those initially sit well with me. Nevermind that for now; focus instead on the footnote.
What I really don’t understand, and now THIS is my favorite part of the whole thing, is the footnote that reads “SAS’s expert, Dr. Covach, did not dispute that the songs used the same combination of elements. Rather, he argued that other, potentially more popular, versions of the songs did not use the combination.”
So my guess is that Dr. Covach reacted as I did about Downtown and Get Off Of My Cloud being suspect, but that the versions presented were NOT the Petula Clark nor Rolling Stones versions that we’re all familiar with. And hey, that’s great; I likely understand what he’s saying, except, WHAT DIFFERENCE COULD THAT POSSIBLY MAKE? What the defense is saying is that there are versions of these familiar songs out there that employ the same “Let’s Get It On” chord progression and harmonic rhythm, and that’s definitely evidence that they’re so commonplace that they can just wind up in renditions of popular songs, and in the same way, I would posit, that they likely wound up in “Let’s Get It On” that day in the studio when the musicians recorded it with Marvin. That’s the nature of musicians moving around their building blocks. They just grooved a bit and landed on it.
