Is a whole song on the sheet music?
Exactly why deposit copies have gone from obscure legal formalities to hot topics in some of the biggest music lawsuits of the last decade is unclear. One theory is that historically, most accusations of infringement have involved the most prominent elements of a song, like the hook, vocal melody or lyrics — things that even the plainest sheet music would highlight.
But as pop music has evolved, and techniques like sampling have become standard, it has also become more common for background elements and secondary parts to be in dispute. Many recent cases, like those over “Blurred Lines” and Katy Perry’s “Dark Horse,” have focused on these aspects. (To some observers, the “Blurred Lines” verdict seemed to give the Gaye estate control over a loose rhythmic groove, though lawyers argued that it involved specific notes on a deposit copy.)
David Pullman, an investor whose company Structured Asset Sales is bringing the Sheeran appeal — he is best known for creating “Bowie bonds,” backed by David Bowie’s music royalties, in the 1990s — said he believes that many current artists borrow too much from popular old songs. “It’s easier to take a shortcut and infringe,” Pullman said in an interview, “than write a song that’s original.”
The history of the Sheeran case, now before the U.S. Court of Appeals for the Second Circuit, is complex. Structured Asset Sales, which owns an 11.11 percent interest in “Let’s Get It On,” filed its own suit over “Thinking Out Loud” after a judge blocked the company from joining the Townsend family’s original action.
Structured Asset Sales’ suit was dismissed by a district court judge shortly after Sheeran won at trial last year. In its appeal, the company argues that a deposit copy does not necessarily define the scope of a song’s copyright under the 1909 law, and that the material on the sheet music only needs to be sufficient to identify it, despite the law’s reference to a “complete” copy. In court papers, Hillel I. Parness, a lawyer for the company, argued that expert witnesses should be able to interpret deposit copies for the jury, as happened at a trial involving the singer Michael Bolton in 1994.
Sheeran’s lawyers argue that the deposit copy rule is clear from the law, and is supported by longstanding guidance from the Copyright Office. At oral arguments last month, Donald S. Zakarin, a lawyer for Sheeran, also warned that straying from a deposit copy’s notation could lead to problems of “subjectivity” when defining a musical work that is in dispute.
“Future authors,” Zakarin said, “are going to be subjected to, ‘No, no, no, I intended to have that bass line. I know it’s not there, but I intended it.’”