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Structured Asset Sales, LLC v. Sheeran

United States District Court, S.D. New York

January 15, 2020

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.

          OPINION & ORDER

          LOUIS L. STANTON, U.S.D.J.

         To be decided on this motion to compel document production is whether this Court should compel defendants to produce documents containing financial information about defendant Edward Sheeran's live performances of "Thinking Out Loud" ("TOL") -- including expenses and revenues related to ticket, merchandise sales and endorsements from such performances, and Sheeran's tour schedules and set lists.

         Because SAS plausibly alleges that each of Sheeran's live performances of TOL infringed SAS's copyright in "Let's Get It On" ("LGO"), SAS's motion to compel is granted as to documents containing information about Sheeran's live performances of TOL on or after June 28, 2015.

         BACKGROUND

         On June 28, 2018, SAS brought this action for copyright infringement, alleging that the musical composition TOL infringes its copyright in LGO. SAS asserts that Sheeran has repeatedly performed TOL live without the right to do so. SAS also asserts that defendants profited from those performances in the form of ticket sales, merchandising, and endorsements.

         SAS seeks from defendants Sheeran, Sony/ATV Music Publishing, LLC, Atlantic Recording Corporation, and The Royalty Network, Inc. the production of documents containing information about Sheeran's live performances of TOL, including expenses and revenues related to ticket sales and merchandise sold at such performances, as well as Sheeran's tour schedules and set lists. It also seeks documents detailing expenses and revenues related to endorsements and merchandising more distantly related to TOL.

         Defendants object that those requests have no causal relationship to the alleged infringement. They also, and more fundamentally, contend that ASCAP and BMI's blanket licenses prevent Sheeran's live performances of TOL from infringing the copyright in LGO.

         DISCUSSION

         Live Performances

         Sheeran's Asserted Right to Perform TOL

         Defendants argue that "as a matter of law, the public performances of either or both TOL or LGO at any or all of the Sheeran concerts in the United States were licensed performances and were, as a matter of law, non-infringing." Def.'s Mem. Opp'n 9. They support this argument with declarations from the Vice Presidents of both Performing Rights Organizations ASCAP and BMI stating that "each of the concert venues at which Sheeran performed TOL in the United States, or the concert promoters, held valid blanket licenses from the PROs, which authorized the public performance of any or all compositions within the repertories of the PROs." Id. at 8-9; Gonzalez Decl. ¶¶ 4-7; Reimer Decl. ¶¶ 3-7. They state that "It is undisputed that both TOL and LGO are within the repertories of the PROs." Def.'s Mem. Opp'n 9. They also further claim that for that reason

. . . it is indisputable that, regardless of whether SAS will ultimately be able to prove that TOL infringed LGO - and Defendants submit that they will not be able to do so - the public performances of TOL at Sheeran's concerts in the United States could not, as a matter of law, be infringing.

Id. at 9 n.6.

         But the defendants' argument lacks a foundation: there is no "right" to infringe. BMI's and ASCAP's blanket and venue licenses could not grant a right to infringe, for there never was one.

         Absent inapplicable exceptions, [1] neither the author nor any licensee of an infringing work has the right to perform it publicly. The author cannot assign, to BMI or ASCAP, the ability to include such a right in their blanket licenses, for the ...


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