IP Law Daily, COPYRIGHT—S.D.N.Y.: Let’s get it on: Marvin Gaye--Ed Sheeran clash edges closer to trial, (Oct 3, 2022)

By Matthew Hersh, J.D.

Sheeran borrowed too much from the music legend, a lawsuit alleges.

The high-flying investment banker who owns the right to a number of songs by music legend Marvin Gaye was entitled to trial on his claim that pop ingenue Ed Sheeran borrowed too much from the 1973 ballad Let’s Get It On, the federal court for Manhattan has held. But the court, while refusing to throw out the case entirely, did narrow the scope of damages the banker could win if he prevails (Structured Asset Sales, LLC v. Sheeran, September 29, 2022, Stanton, L).

The lawsuit was brought by David Pullman, the investment banker and music ingenue in his own right who is famous for developing so-called “Bowie Bonds” back in the late 1990s. These bonds, which essentially securitized the steady form of royalties enjoyed by the late brilliant performer, allowed third parties to invest in, and trade, bonds backed by that revenue stream. Since then, Pullman has gone on to acquire and securitize portions of the music catalogs of James Brown, the Isley Brothers, and Marvin Gaye, among others. Pullman is not, of course, the only person to bring infringement claims on behalf of the late singer/songwriter; several of Gaye’s family members, who also retain rights in his music, famously prevailed in a multimillion-dollar lawsuit several years ago against Robin Thicke and Pharrell over their song Blurred Lines.

In this lawsuit, Pullman—acting through one of his companies, Structured Asset Settlements—takes aim at Thinking Out Loud, the Ed Sheeran smash hit and 2014 Grammy Award winner. In the lawsuit, Pullman alleges that the Sheeran song purloined from the equally famed Marvin Gaye song Let’s Get It On (the Gaye song never won a Grammy itself, but it was inducted into the Grammy Hall of Fame in 2004). The alleged similarity between the two songs has been the source of widespread commentary and speculation, as any YouTube search of the words “let’s get it on thinking out loud mashup” will reveal.

The lawsuit has already been through several unusual procedural rounds in the Manhattan courts. Pullman first filed a lawsuit in front of Judge Louis Stanton alleging infringement only of the words and music of the song as reflected in the deposit copy of the sound recording then on file. (The sound recording itself, being recorded too early in time, was not eligible for protection.) But the investment banker then filed a new suit, this time in front of Judge Ronnie Abrams of the same bench, based on an updated copyright registration that claimed ownership of additional musical elements not present in the original deposit copy. Judge Ronny stayed that lawsuit pending resolution of the suit now pending before Judge Stanton.

In the lawsuit before Judge Stanton, Sheeran moved to dismiss on a number of grounds, leading to this opinion.

Copyrightability. The court declined to find, as a matter of law, that the allegedly infringed elements of the Marvin Gaye song were sufficiently original to be protected by copyright. The banker’s infringement claim was based on Sheeran's alleged copying of the combination of two elements from the original: (1) the chord progression; and (2) the particular way in which musical “anticipation” was used in connection with that chord progression. The parties agreed that each element, standing alone, was commonplace and unprotectable. But what of their combination? Sheeran argued that it, too, was not copyrightable. The court disagreed. Second Circuit case law teaches, the court noted, that there is no “bright-line rule that the combination of two unprotectable elements is insufficiently numerous to constitute an original work.” What matters instead, the court noted, is the way that the author has selected, coordinated, and arranged the various unprotectible elements. Here, experts retained by each party disagreed on whether Gaye had done so. That was enough, the court found, to preclude summary judgment.

Substantial similarity. The court also declined to make a finding on substantial similarity, thus dismissing Sheeran’s motion on this ground as well. To be sure, the court noted, substantial similarity cases based on only a small number of elements, as was this one, are generally more difficult to sustain absent “only by very close copying” of the original. Nonetheless, the court observed, musicologists here too disagreed about whether the Sheeran song was close enough to the original to infer copying. Thus, the case would go to trial.

Infringers profits. Although the court allowed the investment banker’s case to go to trial, it narrowed—potentially significantly—the amount of profits he could take from a victory. There was little doubt that the banker was entitled to some portion of ticket sales from Sheeran’s live performances that included the allegedly infringing song, as those constituted direct revenues from Sheeran’s performances. But sales of merchandise and other products at those concerts were a different matter. These would constitute indirect revenues, meaning that the banker could tap into those revenues only if he could show a reasonably causal connection between the performance of the song itself and the sales of merchandise. This the banker failed to do, the court held, thus striking these profits from his potential winnings.

The case is No. 1:18-cv-05839-LLS.

Attorneys: Hillel Ira Parness (Parness Law Firm, PLLC) for Structured Asset Sales, LLC. Andrew Mark Goldsmith (Pryor Cashman LLP) for Edward Christopher Sheeran p/k/a Ed Sheeran and Sony/ATV Music Publishing, LLC.

Companies: Structured Asset Sales, LLC; Sony/ATV Music Publishing, LLC

Cases: Copyright NewYorkNews