About a year ago, a jury found that Ed Sheeran had not copied Marvin Gaye’s “Let’s Get It On” when he wrote “Thinking Out Loud.” And while that trial, in which the plaintiff was the estate of Ed Townsend, received a lot of media attention, there was another with a different plaintiff and stakeholder in “Let’s Get It On,” David Pullman’s Structured Asset Sales. Following the jury verdict, the judge, who presided in both cases, dismissed SAS’s case.
I had been critical of Judge Stanton for even allowing “Thinking Out Loud” to go to trial, but I was surprised by the seemingly inconsistent about-face on the SAS case. From a musicological standpoint, I didn’t mind the dismissal. Legally, well, I’m not a lawyer, but I somewhat agreed with SAS that it was “mysterious.”
It’s still hard to see how this goes anywhere. But let’s give it a look and consider their position, which begins with a considerable obstacle, which, if they overcome it, Led Zeppelin might also take notice.
It wasn’t that long ago (1978) that the Copyright Office accepted only sheet music as the representation of the registered work. When these works wind up in a copyright litigation the courts, courts reject recordings, even famous ones, and accept only the music shown on the “deposit copy” as the copyrighted work. In both the “Stairway To Heaven” and “Blurred Lines” trials, recordings of the plaintiff’s works, “Taurus” and “Got To Give it Up” respectively, were banned from the courtroom. The juries were not allowed to even hear them, only a performance of the notes written on the deposit copy. Anyone who wants to delve into how that played out can find several articles here on Musiciologize.
It’s a problem. Should the deposit copy, which is often no more than a basic sketch of a song, limit the protectable elements of the song to just the notes on the page? As this appeal brief says, “Sheet music is never the same as the music it depicts, but is merely an approximation of it.” Do we imagine a plagiarist is copying the notes on the deposit copy? No, we imagine that Ed Sheeran stole the “Let’s Get It On” that we hear on the record. I’m reasonably sure Ed Sheeran never even SAW the deposit copy or any other sheet music to Let’s Get it On until he got sued.
Something has to represent the song though, doesn’t it? We don’t grant copyright protection to an ethereal, moving, and expanding concept. The work needs to be a stationary thing that future creators then don’t directly hit.
Or does it? The appeal brief argues against the deposit copy as the end all be all — that “Deposit copies do not, and were never meant to be, a limitation on the scope of the copyright they represent.”
Would you believe the guitar intro to Stairway To Heaven isn’t on Stairway’s deposit copy? Does that mean it’s not protected by copyright? Indeed it might mean that and isn’t that ridiculous? When Spirit sued Led Zeppelin, they sued because Jimmy Page’s guitar introduction sounded like the beginning of Spirit’s Taurus. But when Spirit’s recording was disallowed, it left Spirit to argue that Page infringed on Taurus’s deposit copy, which DID NOT EVEN INCLUDE the beginning of Taurus, the part that mattered not just to Spirit, but to anyone except the defendants. When attorney Francis Malofy called limiting copyright to the sheet music “artificial,” he certainly had my sympathy.
“Let’s Get It On” was similarly hampered at trial. The recording of “Let’s Get It On” was not heard in the courtroom, and the plaintiffs were essentially not allowed to even allude to musical elements that the sheet music might reasonably be interpreted to imply; only what it explicitly showed.
I would not rule any of this out. The appeal might work because the current system, as I recall Malofiy arguing before an en banc panel in the Staiway case, can seem “artificial,”and in a way, the deposit copy “doctrine” I might call it, is somewhat the first defendant in this appeal. The appeal brief argues, I think persuasively, that the plaintiff’s supplemental registration was wrongly excluded (you’re now allowed to submit a recording that corrects the errors and deficiencies of the deposit copy) and simply put makes tons of good points all around. To that extent, I’d love to see the discussion continue and if the appeal holds up, that gets this ball rolling. After that, however, this will just turn back to weird.
The problem remains “Let’s Get It On.” This appeal doesn’t have my sympathies because, procedurally questionable or not, it remains musicologically negligible whether the plaintiff’s “experts” might’ve been allowed in court to show to the jury how trained musicians might perform “Let’s Get It On” if they were reading the written deposit copy transcription. This idea fails musically because the compositional elements of “Let’s Get It On” that are found to some extent in Ed Sheeran’s “Thinking Out Loud,” are too few, brief, and common to be protectable by the plaintiffs or anyone else. Countless original songs will and should be written over time that involve these elements. If those composers are indeed inspired by Let’s Get It On, whether they’re aware of it or not, and if they are, whether they acknowledge it or not, is irrelevant. There would be nothing wrong with that.
The apparent goal of broadening the copyrighted protectable material is interesting but doesn’t make much difference.
Josh Russell covers courthouse proceedings in NY, and writes:
Structured’s attorney Hilel Parness argued, “My experts…would have testified that a skilled musician in seeing the annotations of the paper would know what bass line to play and would play it,” he explained in court on Wednesday morning.
U.S. Circuit Judge Michael Park, a Donald Trump appointee, suggested that the expert testimony would exceed the limited scope of what is covered in the copyright registration. “It seems like your experts are trying to smuggle everything that is outside of the deposit copy,” he said.
Parness answered, “That’s certainly the view of the district court here. He didn’t use the word ‘smuggle’, but he used a similar word.”
Let’s assume Mr. Parness persuades the panel to do what it didn’t do in the Stairway case, expand protection beyond the deposit copy.
But the “Let’s Get It On” sheet music isn’t even all that limiting; it’s a relatively decent transcription, NOT REMOTELY COMPARABLE for example to how limiting it was in “Stairway,” for example.
Would his experts be correct that a skilled musician would know what bass line to play? It’s not a slam dunk. They certainly might play the notes that wound up on the recording and are similar to those in “Thinking Out Loud,” but they might not. The chords are clear, but they don’t specify the simple bass line on the record any more than they would dictate the familar guitar parts. They are to a great extent a framework. And let’s not get too stuck on this.
Let’s not fall prey to thinking a win on this point is a game-changer. It makes little sense to explore possible or even probable interpretations of the sheet music. The bass line elements in the songs are similar. Whether they’re more similar than the first jury was shown, doesn’t matter. And that the bass line on its own would represent a third element in a selection and arrangement argument and thus a fifty-percent increase compared to the two elements — chord progression and harmonic rhythm — that were insufficiently numerable to amount to a protectable selection and arrangement of individually unoriginal elements also doesn’t matter. But we fall prey on trifling matters here as well:
The hearing before a panel of appellate judges took place on Wednesday, April 17, and Blake Brittain, who covered the hearing for Reuters, shared that Judge Michael Park asked Donald Zakarin of Pryor Cashman (Sheeran’s attorney) “So two elements isn’t enough, how many do you need?”
I don’t know if Mr. Zakarin replied. Blake? Maybe you’ll see this? Shoot me a note?
I might’ve answered, “Your honor, it would probably depend on how trivial each item is.” A list of three “elements” where one is the chord progression, another is the bassline, and the third is the rhythm in which they’re both played, is not an interesting list of selected and arranged items.
Is it even a list at all? Isn’t it at least somewhat just one item? Try playing a series of chord without bass notes and without playing the progression in any rhythm. These elements don’t quite exist individually. All chords exist in rhythm and contain a bass note. And these chords, in this rhythm, and their unremarkable default bass notes were “Georgy Girl” first anyway.
The most interesting thing here is not “Let’s Get It On” versus “Thinking Out Loud,” but Mr. Parness and Mr. Zakarin, negotiating some interesting questions.
If this goes through, and eventually the jury hears two songs that sound a bit alike, and are asked to evaluate through the lens of a weird application of selection and arrangement, they might award huge damages. Just ask Pharrell. So, it’s hard to insist Structured Asset Sales should not be giving this all a chance, but they shouldn’t imagine they’ve been wronged here. Legal aspects aside, and whether they succeed with this appeal, or not, musicologically the notion that “Thinking Out Loud” is substantially similar to “Let’s Get It On” remains completely delusional.
