Lawyers for Ed Sheeran, his label and his music publisher are urging the US Supreme Court to reject a rehearing of a copyright case over Sheeran’s hit Thinking Out Loud, arguing that overruling the lower court’s decision could lead to “rampant” speculative copyright lawsuits.
Ruling in favor of Structured Asset Sales (SAS) – which lost a case in a lower court where it claimed that Thinking Out Loud violated the copyright on Marvin Gaye’s 1973 song Let’s Get It On – “would foment vast uncertainty and encourage rampant speculation” on what parts of a song are copyrighted, Sheeran’s lawyers wrote in a brief to the Supreme Court filed on Tuesday (May 13).
If the court accepted SAS’s arguments, it would “expand copyright infringement litigation to encompass elements” that were never protected under US copyright legislation, the lawyers argued, “so long as an expert is willing to testify that such elements can be implied.”
Structured Asset Sales, which says it owns an 11.11% beneficial interest in the royalties from Let’s Get It On, originally sued Sheeran in 2018. In 2023, a federal court in New York summarily ruled in favor of the singer and songwriter, label Warner Music Group and publisher Sony Music Publishing.
SAS 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.
SAS was then left only with the option of appealing to the Supreme Court, which it did in March.
The core of SAS’s argument is that the lower courts erred in their decision because they followed the guidelines that the US Copyright Office set out for what is and isn’t protected in music compositions.
The rule was that only the parts of the song that appeared in the sheet music that was deposited with the Copyright Office were protected. (Prior to 1978, only sheet music, and not recordings, could be used as deposit copies for a copyright registration on music.) SAS’s lawyers argued that Let’s Get It On included an “implied” bass line that wasn’t part of the deposited sheet music, and it was this part of the song that Sheeran’s Thinking Out Loud violated.
In appealing the verdict, SAS’s lawyers pointed to a Supreme Court ruling last year in the case of Loper Bright v. Raimondo, where the top court decided that courts don’t have to follow the interpretations of the law set out by government agencies. Because of this ruling, they argued, the courts made a mistake in accepting the Copyright Office’s interpretation of what parts of a song are protected.
