A US court has – yet again – ruled that Ed Sheeran’s 2014 hit ‘Thinking Out Loud’ doesn’t rip off Marvin Gaye’s ‘Let’s Get It On’. If this all feels a bit groundhog day you’d be correct, because this is the third time an American court has reached this conclusion. Which, you might think, should settle this matter once and for all. Though don’t be too certain about that, there could be yet more legal proceedings.
The legal battle you most likely remember in which Sheeran was accused of song-theft over ‘Thinking Out Loud’ was pursued by the estate of the co-writer of Gaye’s song, Ed Townsend. That ended up in front of a jury who ruled in Sheeran’s favour. However, another lawsuit was filed by Structured Asset Sales, which has an interest in ‘Let’s Get It On’. A judge previously dismissed that lawsuit, but SAS appealed.
Which is why we now have a ruling from the Second Circuit Appeals court, which agrees with both the previous rulings on this. “No reasonable jury could find that the two songs, taken as a whole, are substantially similar in light of their dissimilar melodies and lyrics”, it ruled. Yes, the two songs share some musical elements – a four-chord progression and syncopated harmonic rhythm – but, “even when combined” those elements are “too unoriginal for copyright protection”.
Those elements, combined in that way, appear in other “prominent musical works”, the judges added. And the company that sued Sheeran “failed to rebut evidence that this same combination appears in well-known songs predating ‘Let’s Get It On’”.
The CEO of SAS, David Pullman, is, unsurprisingly, unimpressed with this latest ruling. In fact, he told Law 360 that the Second Circuit’s judgement was “absurd”, adding that – if the elements shared by ‘Let’s Get It On’ and ‘Taking Out Loud’ are commonplace – “how come you could only point at two songs in the history of the world that are similar?”
SAS is now reviewing its options following last week’s ruling, though it has already filed a second lawsuit in relation to this dispute which is currently stayed.
Which means there have been three lawsuits in total accusing Sheeran and his co-writer Amy Wadge of ripping off ‘Let’s Get It On’ when they wrote ‘Thinking Out Loud’: the one pursued by the Townsend estate, the original SAS lawsuit that went to appeal, and the second SAS lawsuit.
The headline grabbing trial involving the Townsend estate reached its conclusion in May 2023, when a jury concluded that the elements shared by the two songs were not protected by copyright in isolation.
The first SAS case was then dismissed via summary judgement a few weeks later, prompting the appeal to the Second Circuit. With three rulings now made in Sheeran’s favour, we await to see what happens with the third lawsuit, and whether SAS pursues any further appeals.
In addition to siding with Sheeran on the core claim of copyright infringement, the Second Circuit also ruled on a copyright law technicality that often comes up in song-theft cases involving older songs.
It relates to the principle under US law that, in song-theft cases like this, only the version of the song filed with the US Copyright Office can be considered when identifying if two songs are sufficiently similar to constitute copyright infringement.
That principle has a big impact if the earlier song was registered with the Copyright Office before a change to the rules that occurred in the 1970s, when only the sheet music could be filed when a work was registered, not any recording of the song.
Which means, when courts are considering the song-theft allegations, only similarities between the new song and the old song as documented in the sheet music can be considered. Any elements that were added to the most famous recording of that song in the studio are not included in the consideration.
When ‘Let’s Get It On’ was registered in 1973 only the sheet music was filed and, on that basis, the lower court ruled that only similarities between ‘Thinking Out Loud’ and the sheet music version of Gaye’s song could be taken into account. That ruling was also appealed by SAS, however, the Second Circuit knocked back that claim too, saying that the lower court’s conclusion on this point was correct.