MANHATTAN (CN) — An investment banker who owns some of the rights to Marvin Gaye’s 1970s carnal anthem “Let’s Get It On” pressed a Second Circuit panel on Wednesday morning to send his copyright infringement case against pop singer Ed Sheeran back to a lower court for a jury trial with expert testimony about the song's bass line.
Two weeks after a New York jury handed the redhaired singer a trial victory last May over the estate of Gaye's co-writer on “Let’s Get It On” in their yearslong fight over similarities with Sheeran’s “Thinking Out Loud,” U.S. District Judge Louis Stanton separately dismissed another suit against Sheeran over the two songs brought by Structured Asset Sales, a group that also owns a share of the copyright to “Let’s Get It On.”
Represented by attorney Hillel Parness, a former head of litigation at Warner Music, Structured Asset Sales appealed this past June seeking a reversal of Stanton’s dismissal on summary judgment.
Before a three-judge panel of the Second Circuit Court of Appeals on Wednesday, Parness argued Stanton erred by barring Structured Asset Sales’ musicology experts from opining and testifying as to how skilled musicians would play that sheet music, and instead relying on what is called the deposit copy, the original handwritten sheet music for “Let’s Get It On,” since the copyright does not cover the actual sound recording of the song.
"My experts...would have have testified that a skilled musician in seeing the annotations of the paper would know what bass line to play and would play it," he explained in court on Wednesday morning.
The company wants to remand the case to the Southern District of New York so that it can call expert musicologists to demonstrate how the iconic bass line in “Let’s Get It On” should be included in the copyrightable composition, and provide expert opinion as to how professional musicians would understand that the bass line was present even if not explicitly notated in the registered sheet music.
"Musical compositions — like dance and other forms of art — are by their nature somewhat ephemeral, even when fixed in acceptable industry-wide form," Parness wrote in an appeals brief. "Deposit copies do not, and were never meant to be, a limitation on the scope of the copyright they represent. They serve an identifying function, but nothing in the statute (whether the 1909 Act or the 1976 Act) says that the deposit copy takes the place of the underlying creation."
U.S. Circuit Judge Michael Park, a Donald Trump appointee, suggested that the expert testimony would exceed the limited scope of what is covered in the copyright registration. “It seems like your experts are trying to smuggle everything that is outside of the deposit copy," he said.
Parness answered, "That's certainly the view of the district court here. He didn't use the word 'smuggle', but he used a similar word."
Sheeran’s attorney, Pryor Cashman partner Donald Zakarin, meanwhile urged the panel to affirm the dismissal on summary judgment, because the copyright owners’ claims against “Thinking Out Loud” rely on what he calls “two unprotectable elements — a commonplace chord progression and the commonplace technique of anticipation.”
Zakarin pointed out that the syncopated “I - iii - IV- V” chord progression in “Let’s Get It On” had been used in multiple songs before Gaye and co-writer Ed Townsend came up with the song — including by Gaye’s Motown labelmates The Temptations — and argued that affirming copyright to the owners of “Let’s Get It On” would be “granting a monopoly to a subsequent user.”
“The court correctly concluded that granting one user a monopoly over such unprotectable elements would deprive future songwriters of the ability to use basic musical building blocks, contrary to the purpose of the Copyright Act, which, as Justice Stewart observed in Twentieth Century Music Corp. v. Aiken, is ‘to stimulate artistic creativity for the general public good,’” Zakarin wrote in an appeals brief.
Judge Park was joined on the panel by U.S. Circuit Judges Guido Calabresi, a Bill Clinton appointee, and Barrington Parker, a George W. Bush appointee.
The panel did not immediately rule from the bench Wednesday morning.
The Los Angeles-based Structured Asset Sales, which was founded by music industry executive David Pullman, securitizes future royalties to musical intellectual property and then sells them as asset-backed securities to other investors.
Pullman is an architect behind securitizing musical artists’ catalogues into investment vehicles that have become known as “Bowie bonds."
In 1997, Pullman first orchestrated a trailblazing $55 million bond backed by the future royalties and publishing rights of David Bowie's 25 albums recorded prior to 1990.
The “Ziggy Stardust” singer was then able to use the loan he received upfront to buy out the rights to his songs, gleaned in a notoriously bad deal by an early manager Tony Defries.
Pullman also worked out bond deals for the publishing royalties for the catalogues of Motown songwriting powerhouse Holland-Dozier-Holland, The Isley Brothers, and soul and funk legend James Brown.
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