Second Circuit Holds Musical Works Registered Under the Copyright Act of 1909 Are Limited to the Deposit Copy

By Bailey Hopkins

The Second Circuit recently decided Structured Asset Sales, LLC v. Edward Christopher Sheeran, considering whether Sheeran’s hit song “Thinking Out Loud” infringed the copyright of Marvin Gaye’s 1973 classic “Let’s Get It On.” In a decision for Sheeran, the court held that only the sheet music deposited with the Copyright Office in 1973 was protected under the Copyright Act of 1909, which defined the scope of copyright at that time. The Second Circuit also held that under the “selection and arrangement” theory, even the combination of Let’s Get It On’s four-chord progression and syncopated harmonic rhythm are too unoriginal for copyright protection.

In 2018, Structured Asset Sales (“Structured”) sued Sheeran in the U.S. District Court for the Southern District of New York, alleging Sheeran plagiarized Let’s Get It On, and that the songs’ harmonies, drums, bass lines, and tempos were evidence of Sheeran’s infringement. Sheeran moved for summary judgment in April 2021.

The district court held that Structured’s infringement claim was limited to the scope of the registration as reflected in the Deposit Copy under the then-existing Copyright Act of 1909. Thus, the district court did not consider Structured’s comparison of elements from Let’s Get It On’s sound recording that were not reflected in the Deposit Copy, such as the bass line, as evidence of similarity. The district court also excluded Structured’s expert testimony relating to these elements. The district court granted Sheeran’s renewed motion for summary judgment, which argued that the district court had “overlooked” a “numerosity requirement for selection and arrangement claims of infringement” that other district courts had recently started to weigh.

On appeal, Structured argued that the district court erred in its interpretation of the scope of copyright protection for a musical work under the Copyright Act of 1909 and that the district court should not have granted summary judgment. The Copyright Act of 1909 states that to protect an unpublished musical work, one must make a “deposit, with claim of copyright, of one complete copy of such work.” The Second Circuit explained that a copyright notice cannot be affixed to sound, so distributing a sound recording does not constitute “publication” under the 1909 Act. The Second Circuit further explained that “the statute thus makes clear that its enforceable protection for musical works is limited to the contents of the ‘complete copy’ of the work.” The Second Circuit therefore held the district court properly confined Structured’s arguments regarding copyright protection to the Deposit Copy, and the grant of summary judgment was proper.

The Second Circuit additionally held that “the four-chord progression at issue – ubiquitous in pop music – even coupled with a syncopated harmonic rhythm, is too well explored to meet the originality threshold that copyright law demands.” The court explained that “overprotecting such basic elements would threaten to stifle creativity and undermine the purpose of copyright law.” At least in the Second Circuit, this decision shows that those seeking to enforce copyrights in musical works should base their claims on the Deposit Copy. The decision also reiterates that the standard a plaintiff must meet for a selection and arrangement theory of copyright infringement in musical works is relatively high.