United States Court of Appeals For the Second Circuit

August Term 2023 Argued: April 17, 2024 Decided: November 1, 2024

No. 23-905

STRUCTURED ASSET SALES, LLC,

Plaintiff-Appellant,

v.

EDWARD CHRISTOPHER SHEERAN, PERSONALLY KNOWN AS ED SHEERAN, SONY/ATV MUSIC PUBLISHING, LLC, ATLANTIC RECORDING CORPORATION, DBA ATLANTIC RECORDS, BDI MUSIC LTD., BUCKS MU- SIC GROUP LTD., THE ROYALTY NETWORK, INC., DAVID PLATZ MUSIC (USA) INC., AMY WADGE, JAKE GOSLING,

Defendants-Appellees. *

Appeal from the United States District Court for the Southern District of New York No. 18-cv-5839, Louis L. Stanton, Judge.

Before: CALABRESI, PARKER, and PARK, Circuit Judges.

* The Clerk is respectfully directed to update the caption accordingly. In this appeal from a judgment of the United States District Court for the Southern District of New York (Stanton, J.), we consider whether the district court erred by dismissing an action alleging that Ed Sheeran’s 2014 hit Thinking Out Loud infringes the copyright of Marvin Gaye’s 1973 classic Let’s Get It On. It did not. First, the Copyright Act of 1909 protects only the musical composition of Let’s Get It On as defined by the sheet music deposited with the Copyright Office in 1973. Second, we conclude that Plaintiff’s “selection-and- arrangement” theory, predicated on the combination of a four-chord progression and a syncopated harmonic rhythm, fails as a matter of law. Accordingly, we AFFIRM the judgment of the district court.

HILLEL I. PARNESS, Parness Law Firm, PLLC, New York, New York, for Plaintiff-Appellant.

Alfred J. Fluehr, Francis Alexander, LLC, Media, Pennsylvania, for amici curiae Randy Craig Wolfe Trust and Sound and Color, LLC.

DONALD S. ZAKARIN, (Ilene S. Farkas, Andrew M. Goldsmith, and Brian M. Maida, on the brief ) Pryor Cashman LLP, New York, New York, for Defendants- Appellees.

PARK, Circuit Judge:

The question in this case is whether the district court erred by dismissing an action alleging that Ed Sheeran’s 2014 hit Thinking Out

2 Loud infringes the copyright of Marvin Gaye’s 1973 classic Let’s Get It On. It did not.

First, the Copyright Act of 1909 protects only the musical com- position of Let’s Get It On as defined by the sheet music deposited with the Copyright Office in 1973 (“Deposit Copy”). The Deposit Copy does not encompass Gaye’s audio recording of the song. We thus affirm the decision of the district court to exclude evidence and expert testimony relating to musical elements outside the Deposit Copy.

Second, Plaintiff’s “selection-and-arrangement” theory fails as a matter of law. Even when combined, the four-chord progression and syncopated harmonic rhythm at issue are too unoriginal for cop- yright protection. Plaintiff failed to rebut evidence that this same combination appears in well-known songs predating Let’s Get It On, leaving no triable issues of fact as to the originality of the alleged com- bination. And no reasonable jury could find that the two songs, taken as a whole, are substantially similar in light of their dissimilar melodies and lyrics.

We affirm the judgment of the district court.

I. BACKGROUND A. Factual Background

In 2014, Defendants-Appellees Ed Sheeran and Amy Wadge wrote the romantic ballad Thinking Out Loud. It topped global music charts and became one of the most-streamed songs