A long-running copyright lawsuit over Ed Sheeran’s Thinking Out Loud could end up being decided by the US Supreme Court.
Lawyers for Structured Asset Sales (SAS), which owns part of the rights to Marvin Gaye’s 1973 song Let’s Get It On, have asked the US’s top court to take on the case, as reported by Bloomberg Law and other outlets.
It’s one of two cases alleging that Sheeran’s Thinking Out Loud ripped off Let’s Get It On. The first case, brought by heirs of Ed Townsend, a co-writer on Let’s Get It On, ended in 2023 when a jury found that Sheeran’s song didn’t violate the copyright on Gaye’s song. Townsend’s heirs initially appealed the ruling, but eventually withdrew the appeal.
The second case, brought before the same US District Court in New York as the first one, also went Sheeran’s way when the judge summarily ruled in favor of the singer and songwriter, label Warner Music Group and publisher Sony Music Publishing in 2023.
SAS, which says it owns an 11.11% beneficial interest in the right to receive royalties from Let’s Get It On, then launched what would become a series of appeals. In November 2024, the Second Circuit Court of Appeals upheld the original district court ruling. SAS’s lawyers petitioned the court for a re-hearing, which the appellate court denied.
That left SAS with only one option: Taking the case to the Supreme Court. According to Law360, SAS did just that on Thursday (March 6), petitioning the court to re-hear the case.
The court has yet to decide whether it will hear SAS’s appeal. If the top court rejects the petition, it will be the end of the legal line for SAS’s efforts. If the court decides to hear the case, it will be hearing a technical argument over how courts are to decide copyright infringement – but one that SAS’s lawyers argue could have wide impact on how copyright laws are interpreted.
In their earlier appeal, lawyers for SAS argued that the court should consider not only the copyrighted sheet music, but also recordings of the music in order to see the alleged similarities between Gaye’s Let’s Get It On and Sheeran’s Thinking Out Loud.
The appeals court rejected that argument, sticking to a long-running practice of deciding copyright cases on the basis of sheet music alone for songs copyrighted before 1978.
Until 1978, only sheet music could be registered with the US Copyright Office; since then, recordings can also be submitted for copyright registration of a song. Since the policy of the US Copyright Office is that only those parts of a song registered with the office enjoy copyright protection, that has also been the policy of courts when ruling on infringement.
However, in their petition for a re-hearing, lawyers for SAS argued that a Supreme Court ruling from last summer upended this tradition. In Loper Bright v. Raimondo, the Supreme Court ruled that lower court judges don’t have to follow the interpretation of the law set out by government agencies.
Thus, the SAS lawyers argued that the court doesn’t need to limit itself to the sheet music of Let’s Get It On to determine if copyright infringement happened.
In their petition to the Supreme Court, SAS’s lawyers say that lower courts erred in their ruling on this case – and also in their ruling on another high-profile case in which Led Zeppelin members successfully fought off a copyright lawsuit alleging that Stairway to Heaven had ripped off Spirit’s Taurus. In that case, the courts also determined that only the sheet music submitted to the USCO could be used to determine infringement.
These rulings mean that copyright owners are “at risk of losing any practical ability to protect their creations,” SAS’s lawyers argued in the petition, which you can read in full over on Bloomberg Law. They again argued that the Supreme Court’s ruling in Loper Bright v. Raimondo means that courts are free to interpret what counts as copyrighted in a way that differs from the US Copyright Office.
However, even if that argument were to win before the Supreme Court, it may not result in a new ruling that favors SAS over Ed Sheeran. The lower court and the appellate court hearing the case both agreed that the elements of Thinking Out Loud that were purportedly copied are so common that protecting them under copyright “could stifle creativity.”
Structured Asset Sales was founded and is run by David Pullman, known for his invention decades ago of “Bowie bonds,” securities that use royalties from recorded and live performances of David Bowie’s music as collateral. In recent years, use of similar asset-backed securities (ABS) has become commonplace among music investment companies.Music ComeOn
