The Second Circuit has affirmed summary judgment of no infringement in favor of Ed Sheeran and his song, Thinking Out Loud, with respect to Marvin Gaye's Let's Get It On. Structured Asset Sales, LLC v. Sheeran, No. 23-905, 2024 WL 4644955, __ F.4th __ (2d Cir. Nov. 1, 2024). The Copyright Act of 1909 (“1909 Act”), which is limited to the elements found in the copy of the work deposited with the Copyright Office for a musical work, governed this case because it was the copyright law in effect in 1973, when the registration at issue was filed. 

     Copyright law accounts for both “the limited number of notes and chords available to composers and the resulting fact that common themes frequently reappear in various compositions, especially in popular music.” Gaste v. Kaiserman, 863 F.2d 1061, 1068 (2d Cir. 1988). Thus, basic musical building blocks like notes, rhythms, and chords are generally not copyrightable. See Compendium of U.S. Copyright Office Practices § 802.5(A) (3d ed. 2017) (“examples of common property musical material” include “chromatic scales” and “arpeggios”); 2 Patry on Copyright § 3:93 (2024) (“[M]usical compositions consisting of only a few musical notes, such as ‘mi do re so, so re mi do,' diatonic or chromatic scales, and common chord progressions, are not protectable.”). 

     But a work consisting of unprotectable elements may still be protectable as an original “selection and arrangement” of those elements. Feist, 499 U.S. at 348. “What is protectible then is the author's original contributions—the original way in which the author has selected, coordinated, and arranged the [unoriginal] elements of his or her work.” Knitwaves, 71 F.3d at 1004 (cleaned up). Whether a selection and arrangement of otherwise unprotectable elements is original enough to merit copyright protection “is a function of (i) the total number of options available, (ii) external factors that limit the viability of certain options and render others non-creative, and (iii) prior uses that render certain selections ‘garden variety.'” Matthew Bender & Co., 158 F.3d at 682-83. 

     In a selection-and-arrangement case, our typical ordinary-observer test must be “more discerning.” Hamil Am., 193 F.3d at 101. “[T]he term ‘substantial similarity' is properly reserved for similarity that exists between the protected elements of a work and another work.” Zalewski v. Cicero Builder Dev., Inc., 754 F.3d 95, 101 (2d Cir. 2014). So, when addressing a selection and arrangement of unprotectable elements, we “attempt to extract the unprotectible elements 
from our consideration and ask whether the protectible elements, standing alone, are substantially similar.” Knitwaves, 71 F.3d at 1002 (emphasis omitted)

Here, the Second Circuit found that the combination of two fundamental musical building blocks, namely, "[t]he four-chord progression at issue—ubiquitous in pop music—even coupled with a syncopated harmonic rhythm, is too well-explored to meet the originality threshold that copyright law demands," citing Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d 1051, 1075-76 (9th Cir. 2020) (en banc) (“[M]any works of art can be recast as compilations of individually unprotected constituent parts . . . deem[ing] substantially similar two vastly dissimilar musical compositions, novels, and paintings for sharing some of the same notes, words, or colors.”). 

Overprotecting such basic elements would threaten to stifle creativity and undermine the purpose of copyright law ...

The Second Circuit also held that no jury could find that, taken as a whole, Let's Get It On and Thinking Out Loud are substantially similar because undeniable and obvious differences exist between them. "Neither the melody nor the lyrics of Thinking Out Loud bears any resemblance to those in Let's Get It On." 

Thus, the Court concluded that, in comparing Ed Sheeran's Thinking Out Loud with respect to Marvin Gaye's Let's Get It On, "the allegedly infringing elements here boil down to a similar, but not identical, four-chord progression paired with a commonplace harmonic syncopation, neither of which is sufficiently original to be protectable in isolation, nor is their combination" and that "the songs are not substantially similar taken as a whole."