Ed Sheeran, who famously brought his guitar into court and performed live renditions of “Thinking Out Loud” to illustrate his creative process, has scored another legal victory in ongoing litigation concerning claims that his hit song infringes upon Marvin Gaye’s 1973 classic, “Let’s Get It On.” In a memorable moment from the trial, Sheeran’s live performances aimed to demonstrate to the jury the original aspects of his songwriting, arguing that the similarities cited were coincidental and rooted in basic musical building blocks. Now, the Second Circuit has upheld a lower court’s decision, rejecting allegations by Structured Asset Sales (SAS) that “Thinking Out Loud” unlawfully copied elements from Gaye’s song. With this appellate decision, the court provided further clarity on why certain musical elements remain unprotectable under copyright law.

Quick Recap

The case centers on ongoing claims that Sheeran’s “Thinking Out Loud” copied core elements of “Let’s Get It On,” specifically a four-chord progression paired with a syncopated rhythm. SAS argued that this particular selection and arrangement created an original combination deserving of copyright protection. However, both the district court and now the Second Circuit found that these claims didn’t meet the standards required for copyright infringement.

The Second Circuit's Analysis

In its decision, the Second Circuit underscored two critical points that shaped the outcome of the case. First, it confirmed that copyright protection for “Let’s Get It On” is limited to the specific sheet music deposited with the Copyright Office in 1973 under the 1909 Copyright Act, not Marvin Gaye’s recorded audio. The court, therefore, limited the scope of the copyright claim to the elements directly expressed in that Deposit Copy. As a result, SAS’s attempt to reference Gaye’s full audio recording, which includes elements not in the sheet music, was rejected as outside the scope of copyright protection for “Let’s Get It On.”

Second, the court tackled SAS’s argument regarding the song’s musical elements—a four-chord progression paired with a syncopated rhythm. SAS contended that combining these elements created an original, protectable selection and arrangement that Sheeran allegedly copied. The court, however, ruled that this combination was simply too common and unoriginal to qualify for copyright protection. To support its decision, the Second Circuit cited other well-known songs predating “Let’s Get It On,” including Georgy Girl and Since I Lost My Baby, which featured similar chord progressions and syncopated rhythms. These precedents demonstrated that the musical elements in question were neither unique nor novel, but rather part of a long-standing tradition in popular music.

The court explained that allowing copyright protection for this combination would effectively grant exclusive rights over fundamental musical building blocks, such as basic chord progressions and rhythmic techniques like syncopation. These components are ubiquitous in popular music and, according to the court, lack the originality required for copyright under U.S. law. By drawing a clear line between original expression and commonplace musical structures, the Second Circuit reinforced the idea that copyright law does not extend to every similarity between works, particularly when dealing with essential musical components widely shared across genres.

In essence, the court’s analysis emphasized that while copyright law protects original expressions of ideas, it does not—and cannot—protect the foundational tools that form the building blocks of music composition. This interpretation serves to safeguard creative freedom, ensuring that artists can continue to build on these elements without fear of infringement.

Setting the Boundaries of Copyright Law

This case reinforces the boundaries of copyright protection in the music industry, establishing that copyright does not extend to foundational musical elements like common chords or rhythms. Instead, copyright law protects unique and original expressions, not the basic musical patterns that form the backbone of many compositions. For music creators, this decision clarifies that while elements such as melody, lyrics, and unique arrangements are copyrightable, core musical structures are not.