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Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

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Speaker 2: I'm obviously very happy with the outcome of the case,

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Speaker 2: and it looks like I'm not having to retire from

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Speaker 2: my day job after all. But at the same time,

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Speaker 2: I'm unbelievably frustrated that basis claims like this are allowed

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Speaker 2: to go to court at all.

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Speaker 3: It's the second copyright infringement trial Ed Sheeron has had

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Speaker 3: to go through in a year, and he made a

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Speaker 3: dramatic vow from the witness stand that he would quit

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Speaker 3: music if he was found guilty of infringing Marvin Gaye's

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Speaker 3: nineteen seventy three classic Let's Get It On. But after

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Speaker 3: a two week trial, it took a jury only two

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Speaker 3: hours to come out with a verdict clearing Sharon and

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Speaker 3: finding that he and his co writer had created his

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Speaker 3: Grammy winning hit Thinking Out Loud independently, which is an

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Speaker 3: absolute defense against copyright infringement. Sharon had defended himself with

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Speaker 3: his guitar, demonstrating for the jury how similar chord progressions

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Speaker 3: are commonplace musical elements found in numerous songs that no

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Speaker 3: songwriter can own. He did a similar demonstration on the

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Speaker 3: Howard Stern Show on Sirius XM.

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Speaker 1: So my one is when your legs at work like

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Speaker 1: they used to before, and then there's ever told, do

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Speaker 1: you likely that I loved you? And then people get ready,

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Speaker 1: there's a chain of coming and then what was the

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Speaker 1: looks like we made it? Look how far we've come?

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Speaker 1: A baby? And don't she breaks sty?

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Speaker 2: I mean there was, there was one hundred and one songs.

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Speaker 3: Despite the win, Shearing expressed frustration at the current litigation

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Speaker 3: frenzy that threatens songwriters.

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Speaker 2: It's devastating to be accused of stealing someone else's song

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Speaker 2: when we've put so much work into our livelihoods. I'm

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Speaker 2: just a guy with a guitar who loves writing music

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Speaker 2: for people to enjoy.

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Speaker 3: Joining me is intellectual property litigator Terence Ross, a partner

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Speaker 3: at Katin Yuchen Terry. The music industry was watching this

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Speaker 3: lawsuit with trepidation. Does the verdict alleviate the fears?

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Speaker 4: You know?

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Speaker 3: Will it discourage frivolous copyright lawsuits?

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Speaker 4: You would hope. So. It is certainly significant in that

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Speaker 4: regard and seems to indicate that the pendulum in these

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Speaker 4: copyright in song cases has swung back in favor of

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Speaker 4: the singer songwriters and away from the plaintiffs. You know this.

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Speaker 4: I'll start it with a twenty fifteen lawsuit against Pharrell

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Speaker 4: Williams and Robin Thick for their Blurred Lines song which

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Speaker 4: purportedly infringed Marvin Gays nineteen seventy seven. Got to give

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Speaker 4: it up an enormous jury verdict that got reduced a

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Speaker 4: little bit on appeal, but that sort of created this

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Speaker 4: target for plaintiffs to aim at and encourage them to

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Speaker 4: bring more lawsuits. And now looking back, we've had multiple

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Speaker 4: wins for defendants, and it seems like that case involving

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Speaker 4: Robin Diick and Pharol william was actually an outlier and

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Speaker 4: that we may have made too much of it. And

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Speaker 4: keep in mind there was a unique situation going there

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Speaker 4: and that Robin Thick had given just a dreadful deposition

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Speaker 4: which he later claimed he'd been high giving it, and

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Speaker 4: they played that to the jury and it was so bad,

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Speaker 4: you know, the videotape, that it may have influenced the

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Speaker 4: jury in ways that we didn't fully comprehend at the time. Now,

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Speaker 4: with a fantastic performance, and I can't call it anything

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Speaker 4: less than performance, but a Sharon on the stand in

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Speaker 4: his case. We see how these cases really do favor

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Speaker 4: the defendant if the defendant is a credible person who

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Speaker 4: gives a good test bony and can explain the basis

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Speaker 4: of his song.

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Speaker 3: Yeah. I believe that it was the defense attorney in

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Speaker 3: the Blurred Lines case that said that Shearon made all

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Speaker 3: the difference here.

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Speaker 5: He was so committed.

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Speaker 3: He was in the court every day, he was on

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Speaker 3: stand from multiple days.

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Speaker 5: He's this nice guy. But also he took on.

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Speaker 3: The defense now and again and even called the musicologist

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Speaker 3: for the other side. So what he was doing was criminal.

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Speaker 4: You're exactly right, June, and he had made the mistake

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Speaker 4: early in his career of caving in and settling a

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Speaker 4: couple copyright lawsuits. The reality is that it's often cheaper

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Speaker 4: to settle some of these copyright suits than to spend

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Speaker 4: the money to defend against them. The problem is, if

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Speaker 4: you get that reputation, people just put you at the

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Speaker 4: top of their list of targets to go after for

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Speaker 4: copyright infringement, even though you've not been held libel for

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Speaker 4: copyright infringement and you don't think you did it. And

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Speaker 4: a couple of years ago it sharing apparently said to himself,

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Speaker 4: enough is enough. He defended aggressively a copyright lawsuit in

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Speaker 4: the UK, which he won. It was last year. This

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Speaker 4: case has been going on since before the pandemic. It

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Speaker 4: was brought, and he's been aggressively defending in and I

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Speaker 4: think with this win, two wins in two years, sending

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Speaker 4: a very strong message that if you come after him

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Speaker 4: for copyright infringement, you better be prepared to go the distance,

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Speaker 4: and you better be prepared to get your rear end kicked,

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Speaker 4: because he is not giving in anymore, not settling these lawsuits,

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Speaker 4: and that's going to make all the difference going forward

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Speaker 4: for him.

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Speaker 3: The jury found that Scheran had created Thinking out Loud independently.

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Speaker 3: That's an absolute defense against copyright infringement. Even if it's

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Speaker 3: a song you've heard and it might have influenced you, it.

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Speaker 4: Is an absolute defense. So you could say that two

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Speaker 4: songs have some substantial similarity, which is the test for

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Speaker 4: copyright infringement, but if the song was independently created, it

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Speaker 4: just doesn't matter that they're substantially similar. That's an absolute defense.

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Speaker 4: And the key I think here at this trial was

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Speaker 4: a you're in getting up on the stand as you

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Speaker 4: said multiple times and explaining the songwriting process in such detail,

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Speaker 4: even explaining he wanted to take a break, take a shower,

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Speaker 4: came back his co writer was working on some chords.

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Speaker 4: The detail is what brought it home to the jury

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Speaker 4: that this wasn't in any sense of copying, that there

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Speaker 4: was a true creative process here, that he was able

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Speaker 4: to relate to them and explain an enormous, specific factual

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Speaker 4: detail and then was backed up by his co writer

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Speaker 4: on this particular song, Amy Wadge, do.

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Speaker 5: You think the musicologists played a part in this?

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Speaker 3: I mean whether one was better than the other, whether

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Speaker 3: the jury like one more than the other.

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Speaker 4: So musicologists testify as expert witnesses. The only difference between

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Speaker 4: expert witness and the other witnesses that an expert witness

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Speaker 4: is allowed to offer his or her opinion based on

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Speaker 4: their expertise, whereas a lay witness can only testify to

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Speaker 4: facts that they actually saw witness experienced. And as a result,

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Speaker 4: sometimes jurors, because there's this process of qualifying an expert

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Speaker 4: making them seem to be great juris, say well, they

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Speaker 4: must know something more than we do, because the judge

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Speaker 4: has specific said they're an expert in the field, and

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Speaker 4: we may want to defer to them. My experience has

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Speaker 4: been that in these sorts of cases where you have

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Speaker 4: a very articulate defendant who can explain the songwriting process,

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Speaker 4: that the musicologists sort of flip into the background a

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Speaker 4: little bit and are less important. Now that's set here

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Speaker 4: in this so called battle the experts between the two musicologists,

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Speaker 4: it is clear that Edsurance god got the better of

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Speaker 4: the argument and got helped in that respect enormously by

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Speaker 4: Edsuran's own testimony. In his testimony during his defense part

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Speaker 4: of the case, ed Sheeran specifically when after the plain

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Speaker 4: tests musicologists and explained how this particular chord progression, or

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Speaker 4: at least the second chord in the chord progression, was

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Speaker 4: not substitutable, and how it really made a significant difference

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Speaker 4: in how a pop song came out, And he played

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Speaker 4: and explained to the jury almost as if he was

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Speaker 4: his own musicologist expert. And I think that's really was

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Speaker 4: a turning point. His musicologist then picked up on that

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Speaker 4: theme and supported it and sort of gave legal credence

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Speaker 4: to it. But again, I think this was Edsurance testimony

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Speaker 4: that won the day.

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Speaker 3: Jerry Verdick doesn't set any legal precedent. But the way

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Speaker 3: that Sharon testified about chord progressions he used that are

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Speaker 3: common among songwriters and building blocks of music, do you

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Speaker 3: think this provides a blueprint for other songwriters accused of

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Speaker 3: copyright infringement?

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Speaker 4: So the defense here certainly wrote a script on how

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Speaker 4: to handle this sort of copyright infringement lawsuit and if followed,

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Speaker 4: should yield simple results. The interesting thing about this whole

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Speaker 4: case is that the judge studiously avoided writing any decisions

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Speaker 4: that might have served in any way as presidential. It

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Speaker 4: was very curious. It makes it very difficult to challenge

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Speaker 4: on a pile as well. But you have here as

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Speaker 4: a straight up jury verdict with a jury finding, and

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Speaker 4: appellate courts say that apps them some sort of corruption,

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Speaker 4: some sort of fraud committed, They got proper instructions which

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Speaker 4: they did that you don't overturn jury verdict. So what's

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Speaker 4: interesting in that respect because I think it's less the

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Speaker 4: presidential value this case that matters going forward than sort

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Speaker 4: of the notions that defendants are no longer going to

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Speaker 4: roll over and settled just because of an accusation of

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Speaker 4: copyright vengement that Gore vigorously defended and that this is

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Speaker 4: not going to be easy pickings, which is how it's

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Speaker 4: been viewed for the last five six seven years in

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Speaker 4: the Robin Thick Blurred Lines case.

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Speaker 3: We've said about the defense here. There are two more

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Speaker 3: lawsuits against shear And over the same song, brought by

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Speaker 3: investment banker and musician David Pullman and Structured Asset Sales,

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Speaker 3: which bought a portion of ed Towns in the state.

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Speaker 3: And after the verdict, Pullman said that he and his

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Speaker 3: lawyers had learned from the trial, we know what to expect.

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Speaker 5: Why another trial about the same song.

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Speaker 4: It's a great question, and it's a real problem in

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Speaker 4: this field. My understanding of the situation is that a

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Speaker 4: third party funder obtained rights to portion of the copyright

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Speaker 4: owned by ed Townsend's estate, which gave them independent standing

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Speaker 4: to sue for infringement. I think there's going to be

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Speaker 4: a real question when that lawsuit is right, whether or

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Speaker 4: not the verdict here, which was specific verdict of independent

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Speaker 4: creation is what's known has raised judokata. In other words,

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Speaker 4: it decides the issue once and for all. That motion

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Speaker 4: will have to be brought by the defense and it's

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Speaker 4: a pretty strong motion, so they may not get to

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Speaker 4: a trial in that second lawsuit.

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Speaker 3: Well, the Pullman said one of his lawsuits would be

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Speaker 3: different because it involved a copyright on the recording of

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Speaker 3: Let's Get It On, rather than just the sheet music.

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Speaker 3: I know we've discussed it before, the sheet music versus

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Speaker 3: the recording, whether that does make a difference.

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Speaker 4: So it's one of the anomalies of twentieth century US

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Speaker 4: music that we did not have copyright protection for recorded

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Speaker 4: sound until very late in the twenty century nineteen seventy eight. Well, correctly,

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Speaker 4: the law that was the copyright law for most of

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Speaker 4: the twentieth century, the Copyright Act of nineteen oh nine,

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Speaker 4: did not allow for copyright and recorded sound because it

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Speaker 4: was in its infancy. It did allow in copyright lonios.

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Speaker 4: That's going well back into the nineteenth century, allowed for

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Speaker 4: copyright in sheet music. And so at the time that

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Speaker 4: What's Getting on was published, record it there was alay

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Speaker 4: copyright available in sheet music. Now there is one sort

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Speaker 4: of variant on that. There are states, individual states that

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Speaker 4: have allowed copyright and record is found earlier than the

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Speaker 4: United States Congress did, and apparently they were going to

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Speaker 4: make some sort of claim under state law. You remember

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Speaker 4: a couple of years ago the old pop group The Turtles,

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Speaker 4: who recorded all of their music prior to the Copyright

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Speaker 4: Act of nineteen seventy six coming into effect and allowing

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Speaker 4: for copyright recorders. They brought a series of lawsuits across

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Speaker 4: the country under very state laws accusing the streaming services

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Speaker 4: of infringing their copyright purported copyright, and ultimately settled when

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Speaker 4: they got a favorable decision out of one of those states,

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Speaker 4: I think Florida maybe. So there's this issue that has

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Speaker 4: always been hanging out there and has never been decided

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Speaker 4: by the Supreme Court. The Copyright Act, both the nineteen

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Speaker 4: oh nine Act the nineteen seventy six Act preempted all

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Speaker 4: other laws. But because record it sound wasn't covered by

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Speaker 4: the nineteen oh nine Act, it wasn't in theory a

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Speaker 4: preemptive of recorded sound copy because there was none. So

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Speaker 4: the states were free to do what they wanted to do.

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Speaker 4: And so that's what the reference here is with respect

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Speaker 4: to this other lawsuit in the.

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Speaker 3: Sharing case with a computerized version of Let's Get It

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Speaker 3: On based on the sheet music, if the plaintiffs in

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Speaker 3: the next case can actually play the song. Do you

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Speaker 3: think that would make a difference even if Sharon testifies

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Speaker 3: as as he did here.

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Speaker 4: So clearly made a difference in the Blurred Lines case.

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Speaker 4: I was not in the court room when that happened.

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Speaker 4: A lot of people said that the playing of those

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Speaker 4: two when listened to by the jury, seemed to have

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Speaker 4: an impact upon the jury, So it is possible that

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Speaker 4: it would have that pack here. I've listened to both songs.

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Speaker 4: You know a little bit about music, but I'm not

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Speaker 4: some sort of musicologist expert, and I'm not sure that

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Speaker 4: it would make a difference to me. But you know,

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Speaker 4: every jury's different, and I have to wait and see

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Speaker 4: what happens. But again, I think it's important to note

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Speaker 4: that the jury made a really important factual finding here

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Speaker 4: that this was an independent creation. That should really, my view,

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Speaker 4: can role.

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Speaker 5: Another thing about these suits is this was seven years

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Speaker 5: and you think about how long the Stairway to Heaven

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Speaker 5: and the Katy Perry was.

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Speaker 3: This involves the artists with lawyers for so many years.

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Speaker 4: Yes, this case is an example of what happened to

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Speaker 4: the court system in certain jurisdictions around the country during

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Speaker 4: the pandemic. This case was filed before the pandemic was

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Speaker 4: moving at a nice clip, and then the pandemic hit.

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Speaker 4: In that particular court, the Southern District New York, which

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Speaker 4: is the court for the City of New York, just FROs,

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Speaker 4: they had trouble dealing with the whole pandemic issue. Not

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Speaker 4: every court in America did that. I tried a virtual

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Speaker 4: case in May of twenty twenty when the pandemic first started,

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Speaker 4: the very first virtual trial in the United States, and

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Speaker 4: we did just find that way not every court was

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Speaker 4: capable of managing the process. And then once the court reopened,

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Speaker 4: then they started getting a handle on how the cases.

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Speaker 4: During the pandemic, they were stuck with the unusual situation

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Speaker 4: that Edsurant was not allowed to come into the country

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Speaker 4: because of various international bands on travel during the pandemic,

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Speaker 4: and the court rightfully said, defendant is entitled to be

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Speaker 4: there for trial and iled to testify and should be

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Speaker 4: heard live. And so that delayed even further. And then

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Speaker 4: all that delay in that particular court some Industrict New

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Speaker 4: York created this backlog so that when we finally got

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Speaker 4: out from under the pandemic and the court system, you

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Speaker 4: had all these cases that had to be tried first

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Speaker 4: because there were criminal cases. In the United States, we

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Speaker 4: have a Speedy Trial Act. You've got to try criminal

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Speaker 4: cases when it's a certain point of time or the

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Speaker 4: defendant walks, and so all those criminal cases got priority

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Speaker 4: over civil cases. And so it to a better part

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Speaker 4: of a year and a half before we got around

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Speaker 4: to this copyright lawsuit. And it is unfortunate that it

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Speaker 4: took so long, but it's not the norm, and hopefully

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Speaker 4: things will start getting back to normal.

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Speaker 3: The deliberation time here is also not the norm.

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Speaker 4: Jury took on He's like two hours to do this.

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Speaker 4: I mean, you think about this too. Yeah, the jury

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Speaker 4: gets back there and it takes a half an hour

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Speaker 4: to get organized, get a cup of coffee, whatever. And

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Speaker 4: that's assuming that it's not the lunch breaker ready, in

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Speaker 4: which case they kill an hour. Then they spend fifteen

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Speaker 4: to twenty minutes arguing about four person because you got

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Speaker 4: big four person first, and the bailiff brings in the

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Speaker 4: forums and they go, okay, what is it that we're

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Speaker 4: supposed to say that sort of thing? You know, So

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Speaker 4: that two plus hours is probably only an hour of

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Speaker 4: deliberation time.

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Speaker 3: It'll be interesting to see if those other cases get

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Speaker 3: to trial because Ed Sheeran. Now it's his second time testifying,

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Speaker 3: second time winning. I think he knows what to do now,

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Speaker 3: Thanks so much, Terry. That's intellectual property litigator Terrence Ross,

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Speaker 3: a partner at Katin Yuchen Rosenman. And that's it for

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Speaker 3: this edition of The Bloomberg Law Show. Remember you can

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Speaker 3: always get the latest legal news on our Bloomberg Law Podcast.

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Speaker 3: You can find them on Apple Podcasts, Spotify, and at

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