There are now no fewer than three lawsuits arguing that Ed Sheeran’s super mega hit “Thinking Out Loud” infringes upon Marvin Gaye and Ed Townsend’s “Let’s Get It On;” two of them from the same plaintiff.
SAS (Structured Asset Sales), which acquired partial rights to “Let’s Get It On” from one of Mr. Townsend’s successors, recently launched its second case against Ed Sheeran alleging the same thing they do in the original filing — that “Thinking Out Loud” infringes on Marvin Gaye’s “Let’s Get It On” — but with a few new twists which I’ll get to in a moment. Another of the current suits is brought by other successors. To my knowledge, the Gaye estate — the ones who successfully sued Robin Thicke and Pharell Williams over “Blurred Lines” has not brought a suit against Sheeran and “Thinking Out Loud;” at least not yet.” Sheeran could face a fourth any time now.
What’s new and interesting here, firstly, is that in addition to suing Sheeran, SAS also sues Sony ATV Publishing, not for infringement, but for breach of contract, duty of good faith and duty of trust.
With friends like you, who needs enemies?
SAS argues that Sony/ATV, which publishes both “Thinking Out Loud” and “Let’s Get It On,” failed to be a good fiduciary to SAS, repeatedly: First, when it put out Sheeran’s “Thinking Out Loud” failing to say, “Hey Ed, this sounds like “Let’s Get It On,” so pay for a license.” Second, by not taking up SAS’s part in all this after “Thinking” became a hit song sounding a lot like “Let’s Get It On,” again not demanding a license and not suing anybody over it. And third, just generally and consistently putting the interests of those who would benefit from “Thinking Out Loud” ahead of those who benefit from “Let’s Get It On” throughout this ordeal.
The other big new twist, more interesting from Musicologize’s standpoint, involves a new copyright registration for “Let’s Get It On.” SAS refiled with the US Copyright Office so that it could add registration for the Tamla audio recording and augment beyond the notes represented on the sheet music registered four decades ago.
Good Ole’ Copyright Act of 1909
It’s a subject that’s been covered here many times but we’ll spend a paragraph on it again. Nowadays, the U.S. Copyright Office lets you submit a recording of your song when filing a PA (performing arts) registration. Most of the time you simply attach an mp3. The underlying composition embodied in the recording becomes your registered work. You might also register copyright in the sound recording itself and that’s an SR (sound recording) registration — a separate matter. But the Copyright Office didn’t always take recordings. The Copyright Act of 1909 defined what a published song looked like, and it wasn’t a recording. This was updated but the Copyright Act of 1976 which went into effect in 1978, and in sum, songs written before 1978 could only be submitted as sheet music. And it was recently upheld by the Ninth Circuit in the “Stairway To Heaven” trial that for songs written before 1978, the 1909-based idea prevails — that the deposit copy registered with the U.S. Copyright Office represents the scope of copyright. In that trial, the recording of “Taurus” (which sounds a ton like Stairway) was never played in the courtroom.
The “Thinking Out Loud” case was paused to see how the “Stairway” decision would go and after the Ninth Circuit ruled, the presiding judge in this Thinking Out Loud case, Judge Louis Stanton, said about the recording of “Let’s Get It On”:
“…the Gaye sound recording is inadmissible in any way which might confuse the jury into thinking it represents what is protected by copyright.”
“For example, comparisons of elements in “Thinking Out Loud” which are similar to elements in the Gaye sound recording, but not the deposit copy, will not be allowed.”
SAS faced having to show enough similarity between “Thinking Out Loud” and the notes on the deposit copy. In “Blurred Lines,” the Marvin Gaye estate faced that challenge and remarkably overcame it. The estate of Randy California was less fortunate facing Led Zeppelin. SAS is taking up the fight that Francis Malofiy (attorney for Randy California’s estate) fought and lost in the Stairway case — that the scope of protection should include the recording. But they have a re-registration that Malofiy didn’t have.
Sheeran presumably danced a jig, because as with the Stairway situation, and mostly every pop and rock track registered for copyright before they began accepting sound recordings, there aren’t that many notes represented on that written page — they’re usually sketches, “lead sheets,” and otherwise watered-down representations!
And SAS may have gotten a nudge from the judges in the en banc review of Stairway and from Led Zeppelin’s defense, both of whom asked “shouldn’t the plaintiffs, after the 1976 act, have registered the “unpublished” parts of Taurus?”
SAS has now registered the previously “unpublished” parts of “Let’s Get It On” by submitting the recording and specifying that they’re now registering everything in that recording that wasn’t covered in the 1973 registration.
Also they claim Sony/ATV balked at getting helping get that re-registration going — evidence that Sony had decided its interests are better served if Sheeran prevails.
Regardless of what’s allowed in the courtroom, from a musicologist point of view, none of this changes the fact that what they’re suing over remains mostly a groove — a chord progression played with a certain rhythm — and neither the chord progression nor the rhythm in that groove is to me at all novel. Common chord progressions played over common rhythms generally don’t enjoy protection through copyright. Blurred Lines is thought to have changed that, but I’m pretty sure even the Gaye team led by Richard Busch would dispute that alongside me even while I disagree with the verdict.
Musicologize looked at this case, and while that article was written some time ago and my opinion has evolved somewhat, I doubt I’m going to read anything in the expert reports that will ultimately change my mind. “Thinking Out Loud” should not be found to unlawfully appropriate “Let’s Get It On.”
SAS by the way was founded by David Pullman who most famously created the “Bowie Bonds” — commoditizing the rights to future earnings from David Bowie’s music. Then he created other bonds including, as the complaint reads, “Pullman Bond series for the Motown Hit Machine, Holland Dozier Holland, R & B Royalty, Ashford & Simpson, The Godfather of Soul, James Brown and The Isley Brothers, among others.
That they added “The Godfather Of Soul” to “James Brown” absolutely slays me.