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

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Speaker 1: Eight years ago, at a concert in Zurich, Ed Shearon

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Speaker 1: sang that mashup of his Grammy winning song Thinking Out

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Speaker 1: Loud and Marvin Gaye's classic Let's Get It On Now.

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Speaker 1: Sharon is in a Manhattan federal courtroom fighting claims that

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Speaker 1: he stole elements from Gay's song, and the pop star

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Speaker 1: defended himself with his guitar playing and singing for the

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Speaker 1: jury to prove that Thinking out Loud was his own.

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Speaker 1: My guest is intellectual property litigator Terrence Ross a partner

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Speaker 1: Katin Yuchen Rosenman Terry. What do the plaintiffs, the airs

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Speaker 1: of Gays co writer Ed Townsend have to prove?

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Speaker 2: So the plane of has to show that there was

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Speaker 2: substantial similarity between Ed Sheeran's song Thinking out Loud and

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Speaker 2: the sheet music for the Marvin Gay Ed Townsend written

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Speaker 2: song Let's Get It On Now. This is a very

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Speaker 2: important distinction. Let's Get It On is from nineteen seventy three.

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Speaker 2: The Copyright Act of nineteen seventy six obviously had not

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Speaker 2: yet been enacted, and so Let's Get It On is

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Speaker 2: under the old copyright regime, and under the nineteen oh

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Speaker 2: nine Act, there is no copyright in recorded music or

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Speaker 2: was recorded sound in general, And so what a songwriter

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Speaker 2: had to do in those days is prepare sheet music.

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Speaker 2: Everybody hopefully remembers that from taking piano in elementary school.

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Speaker 2: But they had to prepare sheet music and submit that

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Speaker 2: to the copyright office. And so the copyright that was

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Speaker 2: issued was strictly limited to the sheet music. And the

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Speaker 2: sheet music is just a series of notes. It does

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Speaker 2: not have the full impact of recorded sound with beats

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Speaker 2: and rhythms. And the jury has to decide whether that

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Speaker 2: relatively sparse sheet music was infringed, meaning whether or not

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Speaker 2: at Sharon's song, thinking out Loud was substantially similar to

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Speaker 2: that sheet music. And that is a big ass. The

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Speaker 2: jury is not, as a matter of law, allowed to

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Speaker 2: compare the recorded song Let's get it on with the

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Speaker 2: recorded song by it Sheeran, Thinking out Loud not allowed

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Speaker 2: to do that. That would be improper. They're going to

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Speaker 2: get a very careful instruction from the judge at the

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Speaker 2: end of the case not to do that. The judge

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Speaker 2: will give them a further instruction that says, all you

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Speaker 2: get to do is compare the sheet music. What typically

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Speaker 2: happens in these cases involving songs with older copyright, say,

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Speaker 2: is that someone comes in with a little keyboard and

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Speaker 2: they play strictly those notes that are on the sheet music.

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Speaker 2: And take my word for it is somebody who's been

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Speaker 2: in the courtroom when this has happened. The effect of

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Speaker 2: hearing a handful of notes played on a keyboard is

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Speaker 2: so different from hearing the recorded music that it becomes

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Speaker 2: very hard for a jury that then jump to the

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Speaker 2: conclusion that that's the same as the recorded music.

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Speaker 1: The plaintiffs are claiming that Seron deliberately and intentionally copied

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Speaker 1: gay Song, so not accidentally. Plaintiff's attorney Benjamin Crump said

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Speaker 1: that Seron quote recognized the magic of gay song, and

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Speaker 1: he had decided to capture a bit of that magic

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Speaker 1: for his own benefit. Isn't that a big ask for

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Speaker 1: the jury? When Saron said he came up with the

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Speaker 1: song after the death of his grandfather.

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Speaker 2: It's substantially hyperbole. And the mistake that some trials make

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Speaker 2: in buying into their own hyperbole is that they end

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Speaker 2: up setting a very high bar of proof. Because the

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Speaker 2: jury hears that statement, they think, oh, in order to

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Speaker 2: find for the plaintiff here, I have to find that

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Speaker 2: Ed Shard set out to intentionally deliberately copy this specific song,

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Speaker 2: which isn't necessarily the law here, but they now think

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Speaker 2: that thanks to the plaintiff's opening.

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Speaker 1: Here's what Sharon said last year after winning an infringement

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Speaker 1: trial in Britain over another one of his hits, Shape

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Speaker 1: of You.

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Speaker 3: There's only so many nights and very few chords used

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Speaker 3: in pop music. Coincidence is bound to happen if sixty

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Speaker 3: thousand songs are being released every day on Spotify, there's

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Speaker 3: twenty two million songs a year, and there's only twelve

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Speaker 3: nights that are available.

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Speaker 1: Sharon's defense seem to be arguing something like that. In

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Speaker 1: this case, what do they have to prove?

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Speaker 2: The core of the copyright infringement argument by the plaintiff

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Speaker 2: is that both songs have a or chord progression that

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Speaker 2: it ends now the second chord in that for chord

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Speaker 2: progression is slightly different. The argument that the Senate it

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Speaker 2: sharing's attorneys have to make is that those chord progressions

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Speaker 2: are very limited, and we all know if there's only

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Speaker 2: eight notes in the octave scale, right, But even when

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Speaker 2: you combine those notes into chords. For different genres of music,

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Speaker 2: there are limits on the number of chord progressions available

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Speaker 2: to actually make it sound like what you want it

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Speaker 2: sound like. So in the pop music industry there's actually

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Speaker 2: very few chord progressions that are available. It's a little

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Speaker 2: bit different from blues music, where you have a slightly

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Speaker 2: larger range of chord progressions available. But again it's finite.

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Speaker 2: And the argument that has been made over the years

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Speaker 2: is that where you have this finite group of notes

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Speaker 2: and finite group of chord progressions, you can't allow any

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Speaker 2: song or group of songs, to an effect monopolize them

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Speaker 2: by having gotten there first with their selection in notes

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Speaker 2: chord progressions. That's not what the Copyright Act is supposed

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Speaker 2: to be about. It's supposed to protect unique expression and

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Speaker 2: not merely the use of as people often said, the

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Speaker 2: building blocks of a pop song. And so I hope

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Speaker 2: that explains it. That is the fundamental battle that has

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Speaker 2: been going on, not only in this courtroom, but in

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Speaker 2: numerous courtrooms for the last fifteen to twenty years.

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Speaker 1: On Thursday, Sharon took the stand in his defense case,

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Speaker 1: and from all accounts, did very well.

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Speaker 2: He talked through the process by which he created Thinking

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Speaker 2: out Loud, the song of issue, and talked about it

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Speaker 2: in incredible detail. And this is what was important to me.

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Speaker 2: He remembered exactly what he was doing at the time.

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Speaker 2: His collaborator, Amy Wadge, was in his apartment. He goes,

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Speaker 2: I'm going to go take a shower to a shower,

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Speaker 2: came out. She was messing with some pop chords and

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Speaker 2: putting them in different arrangement, and he goes, hey, I

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Speaker 2: think he got something there, and they started tinkering with it.

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Speaker 2: And he remembers the process so distinctly that it lends

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Speaker 2: credibility to his assertion that he didn't borrow this from

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Speaker 2: any other artist. Second thing that was really interested about

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Speaker 2: his testimony was his comment that he works with Amy

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Speaker 2: Wigs all the time. They're just really good at pulling

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Speaker 2: up music quickly. He said that since they were both

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Speaker 2: in New York City for this trial over the last

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Speaker 2: four days, did written ten songs back in the hotel room,

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Speaker 2: I mean, which is just phenomenal. But the point that

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Speaker 2: the defense was trying to make is this guy's just

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Speaker 2: really talented and creative. He's a prolific singer, songwriter who

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Speaker 2: doesn't need to steal from anybody else. And I thought

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Speaker 2: that was very impactful.

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Speaker 1: So when did Sharon whip out his guitar and start singing?

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Speaker 2: His own lawyers started asking him about the testimony during

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Speaker 2: the plaintiff's case from their expert, the University of Vermont professor,

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Speaker 2: who made the argument that both songs have a four

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Speaker 2: chord progression, although there is one difference in the four

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Speaker 2: chord ascending progression, specifically in the second chord, that it's

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Speaker 2: a variant chord, that it's easily substituted and is not

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Speaker 2: therefore meaningful. Ed Shearon's own lawyer asked him about this,

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Speaker 2: and he said, essentially, God doesn't know what he's talking about.

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Speaker 2: And he whipped out his guitar, which had been pre

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Speaker 2: positioned behind the witness stand before anybody'd come into the courtroom.

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Speaker 2: Nobody would know it was there. And once somebody like

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Speaker 2: Ed Sharon has a guitar in his hand, the planet's

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Speaker 2: attorney can get up an objectives much as he wants,

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Speaker 2: but that jury is going to resent it if he's

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Speaker 2: not allowed to play. And so he started playing the song,

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Speaker 2: and he played it two different ways. He played it

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Speaker 2: with the chord progression of the actual song and then

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Speaker 2: the chord progression from the Marvin Gay songs. It's in

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Speaker 2: the very opening of the entire song, and the University

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Speaker 2: of Vermont professor for the planet admit it that the

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Speaker 2: rest of the song is different. So they're only now

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Speaker 2: fighting over this four chord ascending progression. And he says, says,

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Speaker 2: see how that doesn't work. It doesn't substitute in the

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Speaker 2: way the University of Vermont professor was insisting he does.

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Speaker 2: He says, do you hear how that works differently, And

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Speaker 2: a number of the jurors started nodding their head, you know,

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Speaker 2: as if in agreement. And that is a very telling

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Speaker 2: And if there had been a settlement offer on the

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Speaker 2: table from the defense, I would immediately playing if Overnight

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Speaker 2: accepted that. But it just tells you, we've talked about

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Speaker 2: this before, how challenging it is to bring a case

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Speaker 2: against these mega celebrities like Katy Perry, Led Zeppelin, Taylor Swift.

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Speaker 2: We're here at Sharon as they come in the court room,

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Speaker 2: and even if a jur didn't really know him, wasn't familiar,

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Speaker 2: they see the hoopla that's going on at the courthouse.

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Speaker 2: They know he's a big celebrity because of all the

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Speaker 2: hoopla that they see going on, and then he plays

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Speaker 2: guitar and things to them. I mean, can you imagine

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Speaker 2: going back into the jury room that and voting against

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Speaker 2: this guy who's got a sort of really cute levea

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Speaker 2: will look.

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Speaker 1: To start with, they're suing for one hundred million dollars.

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Speaker 1: That number seems out of this.

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Speaker 2: World and I'm dying to see how they're going to

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Speaker 2: prove that up. That's another unfortunate trend in litigation these

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Speaker 2: days to just attach some enormous number at the end

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Speaker 2: end of the lawsuit, you set out everything that you're

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Speaker 2: complaining of, and then at the end of lawsuit in

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Speaker 2: the papers you say, accordingly, play Off seeks one hundred

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Speaker 2: million dollars in damages plus attorneys fees and costs. It's

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Speaker 2: just unfortunate. It's done to get media attention. The media

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Speaker 2: will go, well, this must be an important lawsuit is

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Speaker 2: there's one hundred million dollars of the line. The reality

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Speaker 2: is that even if there's a copyright infringement found, the

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Speaker 2: best they can hope for is some percentage of the

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Speaker 2: royalties that mister Shearon has enjoyed from the copyright that

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Speaker 2: he had in the song, and I don't know what

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Speaker 2: that number would be. It may still be a large

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Speaker 2: number in the sense that it's seven figures. If you

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Speaker 2: recall the Blurred Lines case of a couple of years ago,

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Speaker 2: they similarly asked for a large number and ended up

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Speaker 2: receiving five point four million dollars. I believe was the

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Speaker 2: final round five million dollars, which was by orders of

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Speaker 2: magnitude smaller than what they'd been asking for.

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Speaker 1: We've talked about since Blurred Lines really about the increasingly

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Speaker 1: litigious music industry, and I know this draw was put

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Speaker 1: off until the Ninth Circuit came out with the Stairway

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Speaker 1: to Heaven decision. Are lawyers watching this case not only

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Speaker 1: because of Ed Sheeran, but because of what law may be.

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Speaker 2: Made, So copyright lawyers, music lawyers, and academics they're following

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Speaker 2: this case very closely. There has been over the last

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Speaker 2: decade or so a trend in copyright infringement of songs

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Speaker 2: that really started with the Blurred Lines case. In that case,

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Speaker 2: some interesting decisions by the District court and a curious

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Speaker 2: jury decision ended up in a finding that Rob Thick

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Speaker 2: and Farroh had infringed Marvin Gaye's song. It went up

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Speaker 2: on appeal on the Ninth Circuit and the appel Court

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Speaker 2: struggled and really came up with a disjointed opinion that

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Speaker 2: at the end of the day affirmed the jury award,

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Speaker 2: which set off a feeding frenzy amongst PLAINUS lawyers bringing

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Speaker 2: lawsuits such as this one against Ed Sharon. A couple

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Speaker 2: of years later, there was, as part of that feeding frenzy,

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Speaker 2: a lawsuit brought against the group Led Zeppelin over their

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Speaker 2: Stairway to Heaven, making many of the same sort of

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Speaker 2: allegations as in the Blurred Lines case and premise done

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Speaker 2: the same sort of legal argument. That case went up

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Speaker 2: to the Ninth Circuit in front of a different panel

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Speaker 2: of three judges who seem to understand or at least

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Speaker 2: have better understanding of copyright law and the field of music,

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Speaker 2: and being more cohesive in their views, came out with

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Speaker 2: a very important decision in which they said that there

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Speaker 2: are some elements in music that are so commonplace that

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Speaker 2: they need to be virtually identical to constitute infringement. So

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Speaker 2: in general, copyright infringement can be proved by just substantial similarity,

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Speaker 2: not identical works. Just substantial similarity is good enough. So

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Speaker 2: here the Ninth Circuit in a landmark case saying that, well,

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Speaker 2: not always in the field of music. We're not going

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Speaker 2: to give outnopolies over notes or chord progressions or riffs.

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Speaker 2: Where were going to say that these are building blocks

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Speaker 2: of all song And in order further to be a

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Speaker 2: copyright infringement, you're going to have to have virtually identical treatment.

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Speaker 2: So the substantial similarity rubric went out the door. Judge Stanton,

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Speaker 2: I mean this case was filed way back in twenty seventeen.

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Speaker 2: Judge Stanton at some point had it called his attention

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Speaker 2: that this led Zeppelin case was up on a deal

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Speaker 2: to the Ninth Circuit, and he deliberately postponed the trial

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Speaker 2: in the ed sharing lawsuit to see what the Ninth

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Speaker 2: Circuit would do, and he said this, I want to

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Speaker 2: see how they handle it because it will be informative here.

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Speaker 2: And then the pandemic hit and as you know, Ed

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Speaker 2: Shearing literally could not get across the Atlantic. He was

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Speaker 2: quarantined in Britain for the longest time. And that's why

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Speaker 2: it's taken six years to get this to trial. There

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Speaker 2: was that delay for the led Zeppelin case and the

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Speaker 2: pandemic or finally a trial, and Judge Stanton said that

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Speaker 2: that led Zeppelin case was very informative in how he

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Speaker 2: we're going to handle this case. So now we come

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Speaker 2: to the current time and the question that lawyers and

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Speaker 2: academics and musicologists are following is this is he going

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Speaker 2: to in this instance hold the plaintiff Townsend's airs. He's

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Speaker 2: going to hold them to that standard set that by

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Speaker 2: the Ninth Circuit that there has to be virtual identity

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Speaker 2: of the taken elements of the song, and we're gonna

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Speaker 2: have to see. The general wisdom out there in my

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Speaker 2: field is that we've seen the pendulum swing, that it

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Speaker 2: swung way far one way during the board Line's case,

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Speaker 2: and it's stuf swung back with the led Zeppelin decision.

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Speaker 2: And the question is is that pendulum going announce swing

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Speaker 2: back towards blurred line someplace built or stay out there

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Speaker 2: where the led Zeppelin decision has it. And that's why

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Speaker 2: this is the important case. It's the first real opportunity

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Speaker 2: to see what that led Zeppelin decision means in practical

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Speaker 2: terms of a real trial.

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Speaker 1: Sharon took the stand last April involving another one of

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Speaker 1: his hits, the twenty seventeen Shape of You, and a

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Speaker 1: judge ruled in his favor and award him more than

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Speaker 1: one point one million dollars. He settled a lawsuit over

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Speaker 1: another one of his hits for twenty million in twenty

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Speaker 1: seventeen over the hit photograph. He's being sued a lot.

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Speaker 2: Several things that are going on here. First, planes don't

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Speaker 2: sue over copyright infringement against someone who's not successful artist, writer, filmmaker.

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Speaker 2: There's no money to be had. So the fact that

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Speaker 2: you're as a successful singer songwriter zed Sharan sets you

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Speaker 2: up as a target in the first place. The second

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Speaker 2: thing that's going on here is that early in his

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Speaker 2: career there were a couple charges of copyright infringement alleged him,

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Speaker 2: and in retrospect he arguably should not have settled them.

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Speaker 2: You start settling them, you go to the top of

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Speaker 2: the target list. You may be on the target list

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Speaker 2: for being successful and adding a lot of money, but

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Speaker 2: you go to the top of that target list when

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Speaker 2: it becomes known in the plaintiff community that you're not

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Speaker 2: going to fight, you're going to settle and pay out,

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Speaker 2: because that's what they want. The planiffs don't want a trial,

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Speaker 2: they don't want a lengthy legal dispute them. They just

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Speaker 2: want to payout. And if you're that kind of artist

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Speaker 2: who's going to settle over and over again, you're going

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Speaker 2: to go to the top of the target list. The

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Speaker 2: third thing that's going on, though, is just the nature

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Speaker 2: of the sort of pop music that Ed Sheeran writes

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Speaker 2: and performs. As I said before, within his sort of

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Speaker 2: wing of the pop music genre, there's a limit, a

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Speaker 2: very finite limit on the number of chord progressions you

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Speaker 2: can use. And you could probably take apart almost any

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Speaker 2: current top twenty pop chart song and find chord progressions

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Speaker 2: used by a recording artist twenty years ago if you

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Speaker 2: wanted to. And so it's not any one thing they're

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Speaker 2: not picking on Ed Sheeran, and I don't think you

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Speaker 2: can draw the conclusion that somehow he's a copyright infringer

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Speaker 2: from all this. It's just a set of circumstances that

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Speaker 2: have landed him into multiple lawsuits. And he has finally

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Speaker 2: apparently taken the advice of some of his smarter and

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Speaker 2: singli ais and started to fight these so as you

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Speaker 2: said last year, he bought the shape of you copyright

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Speaker 2: infringe of my charges and one now I will well

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Speaker 2: ms Ice here. That lawsuit was brought in the United Kingdom.

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Speaker 2: It was brought under the UK's copyright law, which does

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Speaker 2: have some differences from American copyright law, and it was

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Speaker 2: decided by a judge. And the fact that there were

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Speaker 2: attorney's fees awarded, it was not a reflection on the

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Speaker 2: quality or the merits of the planet's lawsuit. In Britain,

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Speaker 2: unlike the United States, if you lose, you pay the

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Speaker 2: other guy's attorney's fees no matter what. Even if you

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Speaker 2: had the best orned suit in the world and you

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Speaker 2: just happen to lose on some technicality, you're stuck with

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Speaker 2: the other guy's legal fees.

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Speaker 1: Thanks so much, Terry. That's intellectual property litigator Terrence Ross