One for the lawyers. Something good should come from this.
The U.S. Court of Appeals for the Second Circuit affirmed the ruling (one of a couple of em) that Ed Sheeran’s “Thinking Out Loud” does not infringe on Marvin Gaye’s “Let’s Get It On. The plaintiff here was neither Marvin Gaye’s estate, nor co-writer Robert Townsend’s, but “Structured Asset Sales,” a company that owns roughly ten percent of the rights to “Let’s Get It On;” well worth defending.
And I know, plaintiffs aside, it’s hard to imagine anyone wants to keep thinking about whether “Thinking Out Loud” infringes on “Let’s Get It On.” It doesn’t. There’s a lot written on it around here. But now have this one final (probably) ruling on the matter, I was thinking I’d jot down a few key things we might note for the future. Then Aaron Moss’ “Copyright Lately” beat me to that and as usual he wrote it better than I could. I told Aaron I wouldn’t even glance at his piece until I wrote this one. “Let’s see if we picked out the same things.” But then I found myself caught up on just this one thing.
It isn’t that there’s much technically wrong with “selection and arrangement” in copyright law. It makes simple enough perfect sense. But I bristle at how it’s often applied in music copyright cases. It’s usually a bad fit; plaintiffs along their way to losing rationally turn to “selection and arrangement” because it’s a second bite at the apple. In this case, SAS argued, as the other “Let’s Get It On” plaintiffs did, that these two songs share both an unprotectable chord progression and an unprotectable harmonic rhythm and we should regard these as two separate considerable things that were used in combination. They’ve got me saying it now –“these elements aren’t sufficiently original by themselves or in combination.” But combination is not really arrangement. It’s like, I dunno, sodium chloride vs salt. Salt isn’t “arranged;” it’s combined. There’s no way to express chords without rhythmic placement and duration.
Music isn’t generally created like that anyway; as a collage of interpolations from the musical toolbox.
I think something reflected upon in the District Court’s original decision here illustrates all of this, and it’s probably the most relevant truth in the case:
From the decision: “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 this accompanying footnote:
“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.” Structured Asset Sales, LLC v. Sheeran, 673 F. Supp. 3d 415, 424 n.4 (S.D.N.Y. 2023)
I find it inadvertently telling. Presumably, the songs referred to are “Downtown” and “Get Off Of My Cloud,” presented in versions not by Petula Clark or The Rolling Stones. The best-known versions weren’t presented because they weren’t exactly the same as “Let’s Get It On.” Other versions of those well-known songs were right on the money, so the defense presented those. And they exist, right on the money, because they can and would exist, different from the originals, the same “selection and arrangement” as in “Let’s” and “Thinking.” And THAT’s because the down-to-the-letter chords and harmonic rhythm of the more popular versions of these songs do not define the composition. That elemental level is too granular, basic, and unfortunately deceiving; too much about how music is depicted as working in a pretend litigation world, for good reasons sometimes, but fraught.
I can’t think of a more damning description. Our application of “selection and arrangement” invites the pedantic question: “How many elements do we require at a minimum to entertain the idea that those elements are “selected and arranged” in an original and protectable way?” Stairway To Heaven (Skidmore) provided some precedent that two is too few to satisfy the “numerosity requirement.” But this mode invites (or justifies? depending on your point of view) a forensic musicologist like me to break down “Let’s Get It On” into its most elemental parts just for the sake of numerosity. For example, I might point to its unprotectable bassline. (Edit: I just allowed myself to look at Copyright Lately and it DID touch upon this , but somewhat differently.) and I call that bassline a third element, nevermind that it rode in on the first two elements. If I can concoct a longer list of essential elements and sub-elements each one increasingly less original, protectable, and relevant than the last, in the hopes of getting past whatever quantity might one day get a “bright-line rule” slapped on it, my client survives summary judgment. That’s not my role.
The point of expert witnesses and forensic musicologists is to help the finder of fact understand the relevant truths, but in 95% of the cases I’ve seen, selection and arrangement does the opposite, or at best puts it at greater risk.
