genre pop

The legal battle over whether Ed Sheeran’s “Thinking Out Loud” infringed Marvin Gaye‘s “Let’s Get It On” has reached the U.S. Supreme Court more than a decade after Sheeran’s hit was released.
In a petition filed last week, a company that owns a stake in the rights to Gaye’s 1973 song urged the justices to overturn a November ruling by a lower appeals court, which said Sheeran had done nothing wrong and that the two tracks shared only “fundamental musical building blocks.”

The company, Structured Asset Sales (SAS), says that the ruling unfairly restricted its allegations to written sheet music rather than all elements included in Gaye’s iconic recorded version. That thorny issue, which has also cropped up in other major cases over “Blurred Lines” and “Stairway To Heaven” in recent years, must finally be resolved by the high court, the company says.

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“The rights of thousands of legacy musical composers and artists, of many of the most beloved and enduring pieces of popular music, are at the center of the controversy,” SAS’s lawyers write in the petition, filed with the high court Thursday (March 6).

Such an appeal, known as a petition for a writ of certiorari, faces long odds. The Supreme Court takes less than 2% of the roughly 7,000 cases it receives each year, hearing only the disputes it deems most important to the national legal landscape.

Sheeran has faced multiple lawsuits over “Thinking,” a 2014 track co-written with Amy Wadge that reached No. 2 on the Billboard Hot 100 and ultimately spent 58 weeks on the chart. He was first sued by the daughter of Ed Townsend, who co-wrote the famed 1973 tune with Gaye. That case ended in a high-profile jury verdict that cleared Sheeran of any wrongdoing.

Thursday’s petition came in a separate case filed by SAS, an entity owned by industry executive David Pullman that controls a different stake in Townsend’s copyrights to the legendary song. That suit was rejected in November by the federal Second Circuit appeals court, which said the lawsuit was essentially seeking “a monopoly over a combination of two fundamental musical building blocks.”

“The four-chord progression at issue—ubiquitous in pop music—even coupled with a syncopated harmonic rhythm, is too well-explored to meet the originality threshold that copyright law demands,” the appeals court wrote. “Overprotecting such basic elements would threaten to stifle creativity and undermine the purpose of copyright law.”

Appealing that ruling to the Supreme Court last week, attorneys for SAS argued the lower court had botched the case by relying only on the “deposit copy” — a bare-bones written version of music sent to the U.S. Copyright Office for many old songs. Doing so was not only legally erroneous but also out of step with reality, the company’s lawyers wrote.

“Nobody who understands the music industry would ever suggest that songwriters consult the deposit copies on file with the Copyright Office as part of their creative (or clearance) process,” SAS wrote to the justices. “To the extent they are aware of the music that preceded them, it is from hearing it on the radio, in movies, television and—for the last quarter century—the Internet.”

That ruling was even more legally problematic, SAS’s lawyers write, because it came in the wake of a Supreme Court decision last year that said courts should afford less deference to legal guidance from federal agencies. By siding with Sheeran — and an agency interpretation from the Copyright Office — SAS says the lower appeals court “openly defied this Court.”

Sheeran’s attorneys can file a response brief in the weeks ahead. The court will decide whether or not to hear the case at some point in the next several months.