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Quick Thoughts on Ed Sheeran and the Future of Music Copyright Litigation in the Second Circuit
Late last week, the Second Circuit Court of Appeal issued a succinct and
unequivocal opinion affirming the decision of the SDNY to dismiss an action
alleging that Ed Sheeran’s 2014 hit Thinking Out Loud infringed the
copyright of Marvin Gaye’s iconic Let’s Get It On. Lest there be any
confusion, in the words of the Second Circuit: “It did not.” Structured
Asset Sales, LLC v. Sheeran, Civil Action No. 18-cv-5839 (LLS), No. 23-905
(2d Cir. November 1, 2024) (Hat tip to the excellent Copyright Lately blog,
whose take on it can be found here).
For those of us who follow Jamaican music and copyright closely, the
opinion was interesting mostly for its analysis and treatment of the
elements that were alleged to infringe: a four-chord progression and
syncopated harmonic rhythm. The Second Circuit classified these
components as “fundamental musical building blocks” in finding them
unprotectable. In doing so, the Court leaned heavily on policy
considerations, noting that “basic musical building blocks like notes,
rhythms and chords are generally not copyrightable,” and warning that a
finding of infringement would risk “granting a monopoly over a combination
of two fundamental musical building blocks,” and “overprotecting such
basic elements would threaten to stifle creativity and undermine the
purpose of copyright law.”
One immediate thought is that this decision portends poorly for the pending
copyright infringement suit brought by Jamaican producers Steely & Clevie
against most of the reggaeton canon. The suit alleges infringement of the
Dem Bow riddim, principally its slightly syncopated drums. But all may not
be lost: one important distinction is that their case was filed on the opposite
side of the country, in the Central District of California (falling under the
Ninth Circuit, as opposed to the Second Circuit), which was responsible for
the infamous Blurred Lines decision – a decision decidedly more expansive
in its take on what is protectable under Copyright law. Their case survived a
Fed. R. Civ. P. 12(b)(6) Motion to Dismiss back in May. While a motion for
summary judgment will surely follow, its outcome remains uncertain.
A broader question emerges: How does this Second Circuit decision align
with the Goldsmith decision? This ruling focused on narrowing protectable
elements and purporting to favor innovation and creativity. Does this square
with Goldsmith, where Andy Warhol’s “interpolations” of Lynn Goldsmith’s
photographic portraits of Prince were found not to be fair use, principally
because they were not transformative? The Goldsmith decision (including
the Supreme Court’s subsequent cosign) was widely applauded by visual
artists, principally photographers, whose work is routinely copied, tweaked
and exploited without their approval. The Sheeran decision will also be
applauded, but by a different group of creatives: a new generation of
authors and composers whose methods and processes for authorship are
more grounded in reference and interpolation. (NB: for attorneys like me
who represent a broad spectrum of creators, it’s impossible to pick a side).
So how does the Second Circuit stand so strongly on the side of “innovation
and creativity” in Sheeran but not in Goldsmith? Is this an implicit
statement about the perceived value of adaptation in the visual arts vs
music? Or does it really all boil down to facts and circumstances?
In the meantime, for creators in all media and genres, nothing is certain
save for agita and angst. Even standing on the shoulders of giants, a shaky
foundation can bring the whole thing down.
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