Structured Asset Sales, LLC v. Sheeran
| Decision Date | 16 May 2023 |
| Docket Number | 18 Civ. 5839 (LLS) |
| Parties | STRUCTURED ASSET SALES, LLC, Plaintiff, v. EDWARD CHRISTOPHER SHEERAN, p/k/a ED SHEERAN, SONY/ATV MUSIC PUBLISHING, LLC, ATLANTIC RECORDING CORPORATION d/b/a ATLANTIC RECORDS, BDI MUSIC LTD., BUCKS MUSIC GROUP LTD., THE ROYALTY NETWORK, INC., DAVID PLATZ MUSIC USA INC., AMY WADGE, JAKE GOSLING and DOES 1 THROUGH 10, Defendants. |
| Court | U.S. District Court — Southern District of New York |
LOUIS L. STANTON, U.S. D.J.
This case presents the question of whether the song "Thinking Out Loud" infringes the copyright of "Let's Get It On." On September 29, 2022, the Court denied defendants' Renewed Motion for Summary Judgment dismissing the case. Defendants now move for reconsideration of that Order.
For the following reasons, defendants' Motion for Reconsideration is granted and the complaint is dismissed.
The Court assumes the parties' familiarity with this case and recounts only what is necessary to decide defendants' Motion for Reconsideration.
Ed Townsend and Marvin Gaye Jr. wrote and internationally released the song "Let's Get It On" in 1973 Dkt. No. 102 ("Third Amended Complaint") ¶ 1; Dkt. No. 201 ("Defendants' Rule 56.1 Statement") ¶ 17. On July 17, 1973, Townsend applied to copyright the song with the U.S. Copyright Office. Dkt. No. 201 ¶ 19. In support of that application, he deposited with the Copyright Office a copy of the sheet music. Id. ¶ 20. The sheet music, which is known as the "Deposit Copy," was subsequently registered under Registration No. EP 314589.[1] Id. ¶ 21. Plaintiff Structured Assets Sales, LLC ("SAS") has an 11.11% beneficial interest in the right to receive royalties from the copyright of "Let's Get It On." Dkt. No 102 ¶ 18; Dkt. No. 201 ¶ 18.
In February 2014, defendants Ed Sheeran and Amy Wadge coauthored the song "Thinking Out Loud." Dkt. No. 201 ¶ 24. Days later, Sheeran recorded, and co-defendant Jack Gosling produced, what would become the commercially released version of the song. Id. ¶ 26; Dkt. No. 102 ¶ 25. "Thinking Out Loud" was released to great commercial and critical success, including a Grammy Award for Song of the Year. Dkt. No. 102 ¶ 17. Co-defendants SONY/ATV Music Publishing, Atlantic Recording Company d/b/a Atlantic Records, BDi Music Ltd., Bucks Music Group Ltd., The Royalty Network, Inc., and David Platz Music (USA) Inc., as publishers and distributors of "Thinking Out Loud," facilitated and assisted with its distribution, promotion, and sales.
SAS alleges that "Thinking Out Loud" infringes on the copyright of the sheet music of "Let's Get It On." Defendants moved for Summary Judgment dismissing the case and SAS crossmoved for Summary Judgment granting it profits from Sheeran's live performance of "Thinking Out Loud."[2] Dkt. No. 202; Dkt. No. 205.
In its Order denying defendant's Motion for Summary Judgment, the Court recognized that this Circuit treats the question of whether "particular elements of a work demonstrate sufficient originality and creativity to warrant copyright protection as a question for the factfinder." Matthew Bender & Co. v. W. Pub. Co., 158 F.3d 67, 681 (2d Cir. 1998). With this in mind, the Court held that the parties' dispute over the originality of the selection and arrangement of the combination of two commonplace musical building blocks-the chord progression and harmonic rhythm-in "Let's Get It On" was a genuine dispute necessitating denial of defendants' motion.
Defendants filed a motion for reconsideration urging the Court to reconsider its findings on liability and grant Summary Judgment dismissing the case, or in the alternative to certify the question of how to satisfy the numerosity requirement under the selection and arrangement test for infringement. Dkt. No. 212. SAS promptly opposed the Motion for Reconsideration. Dkt. No. 214.
1. Motion for Reconsideration
Under Rule 54 of the Federal Rules of Civil Procedure, the Court has the inherent power to reconsider any of its decisions prior to the entry of a final judgment adjudicating all claims at issue. Fed.R.Civ.P. 54(b). A motion for reconsideration is "an extraordinary remedy to be employed sparingly in the interests of finality." Drapkin v. Mafcc Consol. Grp., Inc., 818 F.Supp.2d 678, 695 (S.D.N.Y. 2011). Reconsideration is warranted where there is an "intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." DiLaura v. Power Auth. of New York, 982 F.2d 73, 76 (2d Cir. 1992). The decision as to whether to grant a motion for reconsideration lies squarely within the court's discretion. Analytical Survs., Inc. V. Tonga Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012).
2 . Copyright Infringement
To establish a claim of copyright infringement, "a plaintiff with a valid copyright must demonstrate that: (1) the defendant has actually copied the plaintiff's work; and (2) the copying is illegal because a substantial similarity exists between the defendant's work and the protectable elements of plaintiff's." Peter F, Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63 (2d Cir. 2010). The Court can decide as a matter of law that there is no substantial similarity between the works because "the similarity between two works concerns only non-copyrightable elements of the plaintiff's work." Warner Bros. Inc, v. Am. Broad. Cos., 720 F.2d 231, 240 (2d Cir. 1983).
The test for substantial similarity in music infringement cases is whether a plaintiff can prove that "defendant took from plaintiff's works so much of what is pleasing to the ears of lay listeners, who comprise the audience for whom such . . . music is composed, that defendant wrongfully appropriated something which belongs to the plaintiff." Repp v. Webber, 132 F.3d 882, 889 (2d Cir. 1997) (alteration in original). When, as here, the song's aesthetic appeal is due largely to unprotectable elements, the Court's analysis of substantial similarity "must be more discerning, and ignore those aspects of a work that are unprotectable ... lest [courts] conflate mere copying with wrongful copying." Zalewski v. Cicero Builder Dex,r Inc., 754 F.3d 95, 102 (2d Cir. 2014).
In doing so, the Court is not required to "compare only those elements which are themselves copyrightable." Peter F. Gaito Architecture, LLC, 602 F.3d at 66. Instead, the court is "'principally guided by comparing the contested work's total concept and overall feel with that of the allegedly infringed work.'" Nwosuocha v. Glover, No. 21 CIV. 04047, 2023 WL 2632158, at *4 (S.D.N.Y. Mar. 24, 2023) (quoting Peter F. Gaito Architi cture, LLC, 602 F.3d at 66). "This is so because 'the defendant may infringe on the plaintiff's work not only through literal copying of a portion of it, but also by parroting properties that are apparent only when numerous aesthetic decisions embodied in the plaintiff's work of art-the excerpting, modifying, and arranging of unprotectible components-are considered in relation to one another.'" Peter F. Gaito Architecture, LLC, 602 F.3d at 66 (quoting Tufenkian Imp./Exp. Ventures, Inc, v. Einstein Moomjy, Inc., 338 F.3d 127, 134 (2d Cir. 2003)); see also McDonald v. West, 138 F.Supp.3d 448, 456 (S.D.N.Y. 2015), aff'd, 669 Fed.Appx. 59 (2d Cir. 2016) (same). "[W]here a work relies on the compilation or arrangement of unprotectible elements, it is only eligible for copyright protection 'if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship.'" Threeline Imports, Inc, v. Vernikov, No. 15 Civ. 02333, 2016 WL 11472749, at *13 (E.D.N.Y. Oct. 28, 2016) (quoting Satava v. Lowry, 323 F.3d 805, 811 (9th Cir. 2003)) .
Defendants argue that reconsideration is proper to avoid clear error because the Court overlooked the numerosity requirement for selection and arrangement claims of infringement. Dkt. No. 213 at 5. SAS responds that defendants have not identified any controlling decisions that the Court has overlooked or any intervening change of controlling law. Dkt. No. 214 at 1.
The Court denied Defendant's Renewed Motion for Summary Judgment, in part, because its sister action Griffin v. Sheeran, which arose from the same nucleus of facts and asserted the same claim of infringement, was proceeding to trial. Summary Judgment dismissing the claim was denied in Griffin in January 2019. Griffin v. Sheeran, 351 F.Supp.3d 492, 494 (S.D.N.Y. 2019). Afterward, the Ninth Circuit decided Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020), which is one of the clearest articulations of how copyright law applies to musical compositions. This Court has already adopted and applied to this case one holding of Skidmore: that the scope of copyright protection only extends to the Deposit Copy, here the sheet music of "Let's Get It On." Skidmore also expressly laid out a numerosity requirement for selection and arrangement copyright claims holding that protection applies to "a combination of unprotectable elements ... only if those elements are numerous enough and their selection and arrangement original enough that their combination constitutes an original work of authorship." Id. at 1074.
The numerosity requirement has been alluded to, but not strictly followed, in the Second Circuit. Compare Peter F. Gaito Architecture, LLC, 602 F.3d at 66 () with Knitwaves, Inc, v Lollytogs Ltd, (Inc.), 71 F.3d 996, 1004 (2d...
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