The copyright litigation surrounding Ed Sheeran’s hit song “Thinking Out Loud” illustrates a growing concern in the music industry: the misuse of copyright law to monopolize elements of the public domain. Central to these disputes is the selection and arrangement doctrine, which allows protection for original combinations of unprotectable elements. However, courts have struggled to define how many elements constitute sufficient “numerosity” to warrant such protection. The Structured Asset Sales, LLC v. Sheeran decision (Sheeran II) was the first to address this ambiguity, holding that two elements alone are insufficient—but leaving unresolved how many are enough. This uncertainty poses challenges in the context of musical compositions, where creators frequently draw from shared harmonic structures and chord progressions. Without clearer standards, courts risk enabling copyright claims over foundational components of music, threatening creativity and the integrity of the public domain.
This Comment seeks to further define numerosity in the musical composition context to ensure protection of the public domain so up-and-coming songwriters can practice their creativity without constant fear that their efforts will land them in court unnecessarily.