Credit: yakub88/ShutterstockEd Sheeran.

Despite Ed Sheeran’s court victories last year in which he successfully fended off accusations that his hit song Thinking Out Loud copied Marvin Gaye’s iconic song Let’s Get It On, one of the cases may yet find itself back in court.

The owner of part of the rights to Let’s Get It On is asking an appeals court to overturn one of last year’s court rulings, arguing that a new Supreme Court decision means the previous ruling in the case no longer applies.

Last summer, Sheeran won two lawsuits in a New York federal court in which he was accused of ripping off Let’s Get It On. One of those lawsuits was brought by Structured Asset Sales (SAS), a company founded and led by David Pullman, known for being one of the early innovators of music-backed bonds. The company owns part of the publishing rights to Let’s Get It On.

In May 2023, US District Court Judge Louis Stanton dismissed SAS’s case, overturning an earlier decision to bring the case to trial. That ruling came a few weeks after a jury in another trial presided over by Judge Stanton had concluded that Sheeran’s Thinking Out Loud didn’t infringe the copyright on Let’s Get It On.

SAS appealed that decision and argued before the Second Circuit Court of Appeal that Judge Stanton had erred by barring SAS’s musicology experts from testifying and relying instead on the “deposit copy” of the song filed with the US Copyright Office.

Until 1978, the Copyright Office didn’t accept recorded music in song copyright registrations and required sheet music to be filed. Let’s Get It On was released in 1973.

The sheet music for Let’s Get It On doesn’t include the bass line that SAS claims Sheeran copied in Thinking Out Loud. The company planned to bring in experts who would testify that musicians would interpret the sheet music to include a bass line that is the same as the one on Let’s Get It On.

The three-judge panel of the Second Circuit court rejected SAS’s argument, deferring to the US Copyright Office’s interpretation of the law, which is that only those elements of a song that are included in the deposit copy can be protected.

That’s in line with a principle that courts use government agencies’ interpretation of the law in their rulings. The principle was established by the 1984 Supreme Court ruling in Chevron USA v. Natural Resources Defense Council. In that decision, the top court decided that, when there is an ambiguity in the wording of a law, courts must use the interpretation used by government agencies, so long as that interpretation is “reasonable.”

However, this past summer, in Loper Bright v. Raimondo, the Supreme Court overturned that 1984 decision, and said courts don’t have to automatically accept a government agency’s interpretation of the law.

It “remains the responsibility of the court to decide whether the law means what the agency says,” the court ruled.

That ruling proved controversial. Many interpreted it as undermining the authority of government agencies, making it easier to challenge government policy and harder for agencies to carry out their functions.

Lawyers for SAS argue that this change means the previous appellate court panel’s decision to stick to the Copyright Office’s policy may no longer be valid.

“There can be no dispute that the Copyright Act of 1909 does not say that sheet music (handwritten or otherwise) is the only type of material that can be submitted as a deposit copy for a musical composition – that was an administrative implementation of the Copyright Office,” states the petition for appeal, which can be read in full here

There’s no guarantee that the appeals court will agree to re-hear SAS’s appeal of its lawsuit against Ed Sheeran.

SAS is asking for an en banc hearing, meaning a hearing in front of all the judges of the Second Circuit Court of Appeal. These types of proceedings are granted only when there is a conflict between different courts’ rulings, or when there is a matter of “exceptional importance” brought before the court.

SAS’s lawyers argue that the issue of whether or not the “deposit copy” is the only way to determine what is protected by copyright in a song amounts to a matter of exceptional importance.

“Getting the correct answer on the ‘deposit copy’ question is critical not just for [SAS] and the other owners of the copyright for the Let’s Get It On musical composition, but for thousands of legacy songwriters, artists and/or musicians, who created millions of musical compositions and songs, including some of the greatest songs and musical compositions ever written, who had no choice – by virtue of the Copyright Office’s policies – but to submit sheet music (rather than sound recordings) as deposits in connection with their copyright applications,” the petition states.

If the appeals court agrees to re-hear the appeal and agrees with SAS’s arguments, it can order a new trial in a US District Court.