District court denies defendants’ motion for summary judgment, finding genuine issues of material fact exist as to whether Ed Sheeran’s hit song “Thinking Out Loud” is substantially similar to Marvin Gaye’s classic song “Let’s Get It On.”•District court denies defendants’ motion for summary judgment, finding genuine issues of material fact exist as to whether Ed Sheeran’s hit song “Thinking Out Loud” is substantially similar to Marvin Gaye’s classic song “Let’s Get It On.”

Plaintiffs Kathryn Townsend Griffin and other heirs to the estate of Edward Townsend, the co-author of Marvin Gaye’s classic song “Let’s Get It On,” sued defendants Ed Sheeran and his record and publishing companies for copyright infringement, asserting that defendants’ hit pop song “Thinking Out Loud” copied key elements of plaintiffs’ song. Defendants moved for summary judgment, arguing that (1) the scope of plaintiffs’ copyright protection in the song is limited to the sheet music deposited with the Copyright Office, not the sound recording; (2) the two songs are not substantially similar; (3) any alleged similarities are commonplace musical elements, which are not entitled to copyright protection; and (4) plaintiff Griffin lacks standing. The court denied defendants’ motion for summary judgment, noting that issues of material fact exist as to whether “Let’s Get It On” is substantially similar to “Thinking Out Loud” and whether those similarities are entitled to copyright protection.

As an initial matter, the court found that it was not necessary to decide whether the plaintiffs’ deposit copy or the sound recording defined the scope of the composition’s copyright, because it would not affect the outcome.

The court next discussed the opposing musicology expert reports, which disagreed on whether the chord progressions and harmonic rhythms present in both compositions are unprotectable commonplace musical elements. Defendants argued that the “basic I-iii-IV-V chord progression” in “Let’s Get It On” is a commonplace musical element, by citing 13 songs that use the same progression. While plaintiffs agreed that these 13 songs already existed and use the same progression, they countered by pointing out that defendants could find only 13 songs “out of the hundreds of thousands of songs composed” prior to “Let’s Get It On.” The parties also disputed whether the harmonic rhythm of the four-chord progression in plaintiffs’ composition is protectable, with defendants arguing that this is a common musical technique, which plaintiffs countered by pointing out that defendants could identify only one song with the same harmony and harmonic progression that predated “Let’s Get It On.” The court found that these disagreements precluded summary judgment as a matter of law and that the question of whether these musical elements warrant copyright protection is a factual question that requires a trial.

District Judge Louis Stanton then considered whether the two works are substantially similar. Courts in the Second Circuit can determine substantial similarity by comparing the contested work’s “total concept and overall feel” with the allegedly infringed work, or they can apply a “more discerning” analysis for works that have both protectable and unprotectable elements. The “total concept and overall feel” test considers whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work, while the “more discerning” test requires the court to extract the unprotectable elements and consider whether the protectable elements, standing alone, are substantially similar. Defendants argued that musical elements, specifically song structure, lyrics and tone, establish that “Thinking Out Loud” has a different “total concept and overall feel,” characterized by “somber, melancholic tones, addressing long-lasting romantic love,” whereas “Let’s Get It On” is a “sexual anthem that radiates positive emotions and encourages the listener to ‘get it on.’” The court rejected defendants’ argument and concluded that musical elements such as the I-iii-IV-V harmonic progression, harmonic rhythm, melody, and bass line and percussion, construed in a light most favorable to plaintiffs, might lead a jury to find probative similarities, and stated that “an ordinary observer might experience the aesthetic appeal of both works as the same.” Furthermore, Judge Stanton cited footage from a Sheeran performance that demonstrated how the artist “seamlessly” transitions between “Let’s Get It On” to “Thinking Out Loud,” which a jury “might be impressed by.” In addition, the court stated that even if it applied the “more discerning” analysis, “the overlap of the protectable elements” would prevent a judgment of noninfringement as a matter of law.

Finally, the court addressed defendants’ argument that Griffin lacked standing. Townsend died intestate in 2003, and a California probate court decided that Griffin was an intestate heir of Townsend. However, defendants contend that Griffin obtained this order by omitting, through declarations submitted to the probate court, that she was adopted at birth, which under California’s law of intestate succession means she has no right to inherit from Townsend. Judge Stanton rejected this argument, citing 28 U.S.C. § 1738, which provides that authenticated judicial proceedings of any state “shall have the same full faith and credit in every court with the United States.”