One of the song-theft lawsuits in which Ed Sheeran is accused of ripping off Marvin Gaye’s ‘Let's Get It On’ when he wrote his hit ‘Thinking Out Loud’ could end up before the US Supreme Court.
Structured Asset Sales, which owns a share of the ‘Let’s Get It On’ copyright, has urged the top US court to consider the case, arguing that the “controversy” at the centre of the dispute impacts on “the rights of thousands of legacy musical composers and artists” who are responsible for “many of the most beloved and enduring pieces of popular music”.
The controversy relates to whether or not, under US law, copyright only protects a work in the form that it was submitted to the US Copyright Office when the copyright was first registered. That’s important for legacy composers and artists because, up until 1978, the only thing that could be provided as the ‘deposit copy’ when registering a new copyright was sheet music, with recordings of songs not being permitted.
That has a practical impact where the writer or owner of a pre-1978 song - like ‘Let’s Get It On’ - believes that a new song rips off their work, but the similarities between the old song and the new song are much more apparent in the most famous recorded versions than in the sheet music.
After all, elements may be added in the studio or through the production process that become key components of the song, but which are not reflected in the sheet music.
If copyright only protects the song in the form it was submitted to the Copyright Office as sheet music, it’s potentially much harder to prove that the new song infringes the copyright in the old song.
This issue came up in another big recent song-theft dispute in the US courts, in which Led Zeppelin were accused of ripping off a song called ‘Taurus’ when they wrote ‘Stairway To Heaven’.
In both that case, and the Structured Asset Sales lawsuit against Sheeran, the courts decided that copyright protection was indeed limited to the version of a work submitted to the Copyright Office. In both cases, judges followed the written opinion of the Copyright Office when making their decisions.
But, insists SAS, they both made the wrong decision. Noting that this all begins with the 1909 Copyright Act, it states in its filing with the Supreme Court that, “for 100 years, no court had rendered a legal opinion as to whether the scope of copyright protection was defined and limited by what was submitted as a deposit copy”, until the Ninth Circuit appeals court ruled on the Led Zeppelin case, and then the “follow-on decision” in the Second Circuit appeals court in the SAS v Sheeran case.
The precedents set in these rulings, SAS says, means legacy creators are “at risk of losing any practical ability to protect their creations”, which is one reason why the Supreme Court should take this case.
Another reason is that, according to SAS, the decision of both the Ninth Circuit and the Second Circuit courts to take the Copyright Office’s lead when interpreting somewhat ambiguous American copyright law conflicts with a ruling that the Supreme Court itself made last year.
That Supreme Court ruling - in the Loper Bright Enterprises v Raimondo case - had nothing to do with copyright law, but did consider whether judges should give deference to the opinions of government agencies that oversee or enforce a relevant area of law. It concluded that they should not.
In its filing, SAS says that - in the Loper Bright ruling - the Supreme Court said that “judges have always been expected to apply their ‘judgment’ independent of any” relevant branch of government when “interpreting the laws those branches enact”.
Courts “need not” and under the Administrative Procedure Act “may not defer to an agency interpretation of the law simply because a statute is ambiguous”.
Sheeran was sued twice over the allegations that he ripped off ‘Let's Get It On’ when he wrote ‘Thinking Out Loud’. A lawsuit filed by the estate of the co-writer of Gaye’s song, Ed Townsend, ended up before a jury which ruled in Sheeran’s favour, concluding that his song was written independently from ‘Let’s Get It On’.
SAS’s separate lawsuit was also unsuccessful at first instance and on appeal. Last November the rights company urged the Second Circuit court to reconsider the case ‘en banc’ - so with more judges involved - stressing that it believed that the Supreme Court ruling in Loper Bright meant that the appeals court shouldn’t rely on the Copyright Office’s interpretation of the law.
However, the Second Circuit declined to reconsider the case, hence this final push by SAS to try to get the dispute before the Supreme Court.