S.D. N.Y. (2016)
“Let’s Get it On”
Amy Wadge, Ed Sheeran
“Thinking Out Loud”
Comment by Niall Fordyce
Poor Ed Sheeran once again finds himself the subject of controversy. Following closely on the heels of the recently initiated lawsuit over Sheeran’s “Photograph,” and perhaps spurred on by the favorable but legally and factually very troubling jury verdict in the Blurred Lines case, the heirs of Ed Townsend, the great Marvin Gaye’s songwriting partner, have filed a lawsuit naming Ed Sheeran et al., alleging that Sheeran’s hit song Thinking Of You infringes on the Marvin Gaye (and Ed Townsend) classic Let’s Get It On.
The plaintiffs are represented by the law firm Frank & Rice, P.A., a firm not generally known as music copyright infringement litigation powerhouse. Regardless, this does not excuse the shortcomings in drafting the complaint, including misspellings, grammatical and construction errors, what appears to be a defined term (“Infringing Song”) that is not actually defined anywhere in the complaint, and the curious insertion of “UNIVERSAL” as a defendant in paragraph 58 where “UNIVERSAL” is not otherwise a named defendant, and appears to have no connection to this lawsuit.
Sloppy drafting aside, the substance of the complaint is more troubling. The heart of the Townsend heirs’ claims appears to be that the Sheeran work has infringed the “harmonic, melodic, and rhythmic elements” of Let’s Get It On, although this is somewhat unclear. The complaint states that “Let’s, begins with an iconic melody, harmony and rhythm that are recognized around the world. The prominence of the bass line and drum composition throughout Let’s make these compositional elements qualitatively important to the musical work as a whole. The combination of these elements is the driving force of this composition.” Which elements? The bass line and “drum composition,” or the beginning “iconic” melody, harmony and rhythm? By “driving force,” do plaintiffs mean that “these compositional elements” are original expression protected by a properly registered copyright? Clarity is key, and here, it’s lacking.
We seem to have some focus further on, where the complaint actually states that the “heart” of the work consists of the “harmonic progressions, melodic and rhythmic elements.” However, instead of engaging in any sort of factual musical analysis as to how or why these elements are protected musical expression, and how the Sheeran work allegedly infringes, the complaint only states that these elements are the “most important elements of the song as indicated by critical acclaim.” What does this mean, and what legal significance are plaintiffs asserting should be imputed to the “critical acclaim” received by the admittedly iconic Let’s Get It On?
To muddy the musical waters further, the complaint moves on to state that “[t]he melodic, harmonic, and rythmic [sic] compositions of Thinking are substantially and/or strikingly similar to the drum composition from Let’s.” Suffice to say that the “drum composition” in the Gaye musical work contains neither melody nor harmony, and there is no factual or analytical support suggesting that the “drum composition” is original expression entitled to copyright protection.
Also conspicuously absent from the Townsend complaint is any reference whatsoever as to what is contained in the deposit copy (the actual submission to the Copyright Office) of Let’s Get It On musical work. Under the 1909 Copyright Act, the deposit copy is essential to determining the protectable expression in Let’s Get It On.
Nor is there any substantive analysis in plaintiffs’ complaint as to how the melodic, harmonic, and rhythmic elements of Thinking Of You infringe on Let’s Get It On. While Federal Rules of Civil Procedure, Rule 8, only requires plaintiffs’ complaint to provide “a short and plain statement of the claim showing that the pleader is entitled to relief[,]” Fed. Rule Civ. Pro., Rule 8(a)(2), “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiffs’ legal conclusions coupled with their failure to provide any factual support as to how the Sheeran work infringes may leave plaintiffs’ complaint susceptible to a motion under Federal Rules of Civil Procedure, Rule 12, for failure to state a claim on which relief can be granted. This remains to be seen, and of course, plaintiffs may be entitled to amend their complaint to cure such shortcomings, assuming such shortcomings can be cured.
Moving on to the musical works themselves, an analysis of the elements that plaintiffs allege to be subject to protection reveals both the dearth of protectable musical expression, and as a consequence, the overall lack of substance to plaintiffs’ claims.
As a threshold matter, melody and lyrics, as opposed to harmony and rhythm, have typically been the elements in musical works subject to copyright protection. Notwithstanding, plaintiffs claim protection in the harmonic content of Let’s Get It On.
The “harmonic composition” in which one assumes plaintiffs claim copyright protection, and used in both musical works, consists of one of the most straightforward and pedestrian chord sequences available – a two bar phrase leading from the root or “tonic” chord, moving through the first inversion of the tonic chord, to a root position “subdominant” chord (built on the fourth scale degree), to a root position “dominant” chord (built on the fifth scale degree), and finally resolving exactly as expected, back to the tonic chord, where the progression repeats. This progression is part of any basic musical education, be it formal, as in the Royal Conservatory of Music Syllabus, for example, or learned informally by countless musicians through listening and experience. To be clear, that the harmonic content of Let’s Get It On is very simple should in no way be construed as a pejorative. Let’s Get It On is truly one of the great pop works of the last 50 years. It just happens to use a standard harmonic framework.
The harmonic rhythm, as distinguished from the harmonies themselves, in Let’s Get It On and Thinking Of You is similarly predictable and standard. The tonic and subdominant chords land on the first beats of the first and second bars, respectively, and the first inversion tonic harmony, and dominant harmony, land on the “and” of the second beats of the first and second bars. Both musical works use the standard device of outlining the harmonies and harmonic rhythm in the bass, although the bass line in Let’s Get It On is considerably more ornamented than the bass line in Thinking Out Loud.
The drum tracks at the core of the two works both consist of the age-old practice of snare drum hits on the second and fourth beats of the two measure phrase, with the kick drum at times doubling the rhythm of the bass part. As with the bass line described above, the drum track in Let’s Get It On is more active and inventive than that in Thinking Out Loud, but the basic time-honored structure is similar in both works.
The standard for originality required by the Copyright Act is admittedly low, but surely plaintiffs are not laying sole claim to the concept or idea of a standard harmonic progression and bass line, coupled with one of the most “tried and true” pop music rhythmic patterns. The Copyright Act is unambiguous that “In no case does copyright protection for an original work … extend to any idea, procedure, process, system, method of operation, concept, … or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.” 17 U.S.C. § 102(b). Such is the case here. The basic concepts and their embodiment in Let’s Get It On do not rise to the level of protectable expression, and Thinking Of You thus does not infringe.
Further, plaintiffs appear to have missed the concept that not all copying from a copyrighted work (presupposing that plaintiffs could establish copying here) is necessarily an infringement of copyright. There are elements of a copyrighted work that are not protected even against intentional copying. Attia v. Society of New York Hosp., 201 F.3d 50, 54 (2d Cir. 1999). The generic harmonic and rhythmic ideas and concepts embodied in Let’s Get It On and Thinking Of You do not bear on the substantial similarity analysis of protected original expression in the two musical works.
As for the melodies in the two works, any similarities are nothing more than fleeting at best, and the result of the straightforward harmonic and rhythmic material described above. As such, it is no surprise that overlaying the Thinking Of You melody on the Let’s Get It On instrumental track, or vice-versa, (once both are presented in the same key) “works.” However, this is irrelevant as to whether the melody in Thinking Of You actually infringes on Let’s Get It On. Although analysis of similarities in the two melodies, as opposed their differences, is the proper analysis under the Copyright Act, it is still relevant in analyzing substantial similarity that the two melodies are unequivocally dissimilar in myriad ways, including actual melodic content, rhythm / scansion, phrase structure, and use of “blue” notes in Let’s Get It On.
Moving on to plaintiffs’ causes of action, they do raise a somewhat intriguing issue by bringing trademark infringement claims under the Lanham Act for false designation of origin / reverse passing off. In theory, there is no legal bar to bringing claims under both the Copyright Act and the Lanham Act, as the two Acts protect different rights. However, it is not clear that plaintiffs’ claims under the Lanham Act are viable.
Under the Lanham Act, plaintiffs will still need to show substantial similarity of original expression between the two works. If the “‘substantial similarity’ test in the context of reverse passing off were not the rule [under the Lanham Act], the principle of copyright that denies protection to ideas, concepts, and processes would become a dead letter. A plaintiff unable to prevail under the law of copyright could simply restate his claim as one of unfair competition for reverse passing off. Ideas would no longer be in the public domain We do not think that Congress intended that an obscure corner of the Lanham Act should be interpreted to nullify a fundamental precept of the Copyright Act.” Attia, supra, 201 F.3d at 60. As described above, plaintiffs will have serious difficulty in establishing substantial similarity of any protectable expression under the Copyright Act, thus jeopardizing any claims under the Lanham Act.
Also, violation of Lanham Act would only prohibit publishing the [works] with a false representation as to their source; whether works can be reproduced at all is a copyright issue. See Waldman Pub. Corp. v. Landoll, Inc., 43 F.3d 775, 785-86 (2d Cir. 1994). Plaintiffs’ complaint ignores this legal standard.
Finally, the Restatement of Unfair Competition describes the gravamen of the injury in a reverse passing off case as follows: “the misrepresentation may be likely to induce prospective purchasers to buy additional goods or services from the actor, resulting in a diversion of trade from the party seeking relief.” Restatement §5, cmt. (c). It seems unlikely that plaintiffs will be able to show any misrepresentation on the part of defendants that resulted in misled consumers purchasing Thinking Of You based on some sort of connection to Let’s Get It On.
It remains to be seen as to how this case will progress, but for now, this appears to be yet another in the growing line of cases in which plaintiffs seek to capitalize on the huge market success of another artist’s work through dubious claims of copyright infringement. Thinking Of You may be uninspired pop Pablum, and Let’s Get It On is unquestionably and deservedly a classic, but subjective analysis of musical merit is not a factor to be considered in determining copyright infringement.
Defendants’ Memorandum of Law (21 May ’19): PDF