IP Law Daily, COPYRIGHT NEWS: Let’s get it on the docket, rebuffed copyright owner asks the Supreme Court, (Mar 10, 2025)

By Matthew Hersh, J.D.

The owner of a partial interest in a Marvin Gaye classic is down to its final move in infringement lawsuit against Ed Sheeran.

The Second Circuit ignored controlling precedent by giving undue weight to the Copyright Office manual in deciding that the scope of a musical composition copyright was limited to the written sheet music contained within the deposit copy, a new petition for certiorari asserts. The petition, which asks the Supreme Court to reject the Copyright Office practice, is the latest in a near decade-long battle by the partial owners of a classic Marvin Gaye song to pursue a copyright claim against a modern-day pop superstar (Structured Asset Sales, LLC v. Sheeran, Case No. 24-___, (U.S. March 6, 2025)).

The lawsuit involves two songs that were written more than four decades apart. In 1973, Ed Townsend and Marvin Gaye wrote Let’s Get It On. The now-late Gaye was one of Motown’s biggest stars, and Let’s Get It On was one of his greatest hits. In 2014, Ed Sheeran and Amy Wadge wrote the romantic ballad Thinking Out Loud. That song topped global music charts and became one of the most-streamed songs in history, with billions of streams on YouTube and Spotify.

The dispute over the two songs has been fought on two different fronts—each initiated by partial owners of Townsend’s one-third interest in the original song. (The late Marvin Gaye and Motown Records, which collectively own the remaining two-thirds of the original, have never been involved in the litigation.) In 2017, Katheryn Griffin and two others (owning, collectively, two-thirds of Townsend’s interest in the song) sued Sheeran and various entities that produced, licensed, and distributed Thinking Out Loud. The owner of the remaining one-third of Townsend’s interest, an investment company named Structured Asset Sales, or SAS, brought its own lawsuit against the Sheeran entities in 2018.

After a promising start for the plaintiffs in both cases, the two lawsuits eventually failed. In September 2019, in the Griffin case, Judge Louis Stanton of the Manhattan federal bench refused to grant summary judgment to Sheeran, thus allowing the case to go to trial. And in September 2022, Judge Stanton rejected Sheeran’s summary judgment in the SAS case as well. But the plaintiffs’ luck changed shortly thereafter. But in May 2023, after a trial delayed by COVID, the jury in the Griffin case found that Sheeran did not infringe the Let’s Get It On copyright. And just two weeks later, in the SAS case, Judge Stanton reconsidered his earlier opinion and granted summary judgement to Sheeran on substantial similarity grounds—thus ending that case as well. The Second Circuit affirmed that opinion November 2024.

One of the central questions in the SAS case was the scope of the copyright registration for Let’s Get It On. One of the significant similarities between the two songs, SAS claimed, was the bass line for each. But the bass line appeared only in the original song as it was recorded in the studio—not in the sheet music deposited for the musical composition. Could the court nonetheless infer that the bass line was protected as part of the musical composition as well, even though it wasn’t included in the deposit copy? The district court said no, and the court of appeals agreed. The problem with SAS’s argument, the court of appeals found, was that under the Copyright Act as it existed in 1973, a musical composition could only be protected only by the deposit of two “complete” copies of the sheet music for that composition. Thus, if the bass line was not in the deposit copy, the court reasoned, it could not form part of the copyright infringement claim.

After the full court refused to hear the case en banc, SAS filed this petition.

Petition for certiorari. The petition for certiorari focuses exclusively on the scope of the copyright registration. In reaching its conclusion, the petition asserts, the Second Circuit relied on the Copyright Office’s administrative manual, known as the Compendium of Copyright Office Practices. The problem with that, the petition asserts, is that the court of appeals ignored the teachings of Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), the landmark decision that found—in overruling the longstanding Chevron doctrine—that courts “may not defer to an agency interpretation of the law simply because a statute is ambiguous.” The Second “failed to fulfill its obligation to decide this important question of law,” the petition asserts, and instead “deferred to the statutory interpretation of administrators at the Copyright Office in their administrative Compendium, rather than deciding the issue themselves.”

And the Second Circuit not only gave undue weight to the Compendium, the petition asserts—it also reached the wrong conclusion in doing so. Just because the Act requires a “complete” deposit copy, the petition argues, does not mean that the scope of the registration had to be limited to the sheet music on deposit—particularly when a sound recording was also on deposit for master recording rights in the song. Nor was the Second Circuit’s ruling justified by public policy, the petition argued. The court of appeals argued that it was necessary for others to be able to “ascertain precisely what was the subject of copyright” by reviewing the deposit copy. But “[n]obody 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,” the petition argues. “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.”

The questions presented by the petition are:

1. Did the Second Circuit Court of Appeals erroneously abdicate its responsibility to “decide legal questions by applying their own judgment” by instead “defer[ring] to an agency interpretation of the law,” in contravention of the clear guidance of this Court in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), in which this Court overruled Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), when, in deciding an important matter of first impression, it deferred to an administrative interpretation of The Copyright Act of 1909—a 116-year-old statute—promulgated by the United States Copyright Office in its administrative manual, the Compendium of U.S. Copyright Office Practices, and the 2020 view of the Ninth Circuit Court of Appeals that also deferred to the interpretation of the Copyright Office in the Compendium?

2. Did the Second Circuit erroneously decide an important and undecided question of federal law—a matter of first impression before the Second Circuit and this Court—namely whether the “deposit copy” submitted to the Copyright Office, and in particular handwritten sheet music submitted to the Copyright Office as deposit copies for musical compositions, prior to the point in time when the Copyright Office accepted sound recordings as deposit copies for music compositions (i.e., 1978), works as a limitation on the legal scope of protection afforded by The Copyright Act of 1909?

Attorneys: Hillel I. Parness (Parnass Law Firm) for Structured Asset Sales, LLC.

Companies: Structured Asset Sales, LLC; Sony/ATV Music Publishing, LLC; Atlantic Recording Corp.; BDI Music Ltd.; Bucks Music Group Ltd.; The Royalty Network, Inc., David Platz Music [USA] Inc.

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