WEBVTT - Ed Sheeran Defends Himself With Guitar and Voice

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<v Speaker 1>This is Bloomberg Law with June Brusso from Bloomberg Radio.

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<v Speaker 1>Eight years ago, at a concert in Zurich, Ed Shearon

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<v Speaker 1>sang that mashup of his Grammy winning song Thinking Out

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<v Speaker 1>Loud and Marvin Gaye's classic Let's Get It On Now.

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<v Speaker 1>Sharon is in a Manhattan federal courtroom fighting claims that

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<v Speaker 1>he stole elements from Gay's song, and the pop star

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<v Speaker 1>defended himself with his guitar playing and singing for the

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<v Speaker 1>jury to prove that Thinking out Loud was his own.

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<v Speaker 1>My guest is intellectual property litigator Terrence Ross a partner

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<v Speaker 1>Katin Yuchen Rosenman Terry. What do the plaintiffs, the airs

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<v Speaker 1>of Gays co writer Ed Townsend have to prove?

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<v Speaker 2>So the plane of has to show that there was

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<v Speaker 2>substantial similarity between Ed Sheeran's song Thinking out Loud and

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<v Speaker 2>the sheet music for the Marvin Gay Ed Townsend written

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<v Speaker 2>song Let's Get It On Now. This is a very

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

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<v Speaker 2>The Copyright Act of nineteen seventy six obviously had not

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<v Speaker 2>yet been enacted, and so Let's Get It On is

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<v Speaker 2>under the old copyright regime, and under the nineteen oh

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<v Speaker 2>nine Act, there is no copyright in recorded music or

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<v Speaker 2>was recorded sound in general, And so what a songwriter

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<v Speaker 2>had to do in those days is prepare sheet music.

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<v Speaker 2>Everybody hopefully remembers that from taking piano in elementary school.

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<v Speaker 2>But they had to prepare sheet music and submit that

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<v Speaker 2>to the copyright office. And so the copyright that was

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<v Speaker 2>issued was strictly limited to the sheet music. And the

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<v Speaker 2>sheet music is just a series of notes. It does

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<v Speaker 2>not have the full impact of recorded sound with beats

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<v Speaker 2>and rhythms. And the jury has to decide whether that

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<v Speaker 2>relatively sparse sheet music was infringed, meaning whether or not

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<v Speaker 2>at Sharon's song, thinking out Loud was substantially similar to

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<v Speaker 2>that sheet music. And that is a big ass. The

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<v Speaker 2>jury is not, as a matter of law, allowed to

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<v Speaker 2>compare the recorded song Let's get it on with the

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<v Speaker 2>recorded song by it Sheeran, Thinking out Loud not allowed

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<v Speaker 2>to do that. That would be improper. They're going to

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<v Speaker 2>get a very careful instruction from the judge at the

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<v Speaker 2>end of the case not to do that. The judge

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<v Speaker 2>will give them a further instruction that says, all you

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<v Speaker 2>get to do is compare the sheet music. What typically

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<v Speaker 2>happens in these cases involving songs with older copyright, say,

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<v Speaker 2>is that someone comes in with a little keyboard and

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<v Speaker 2>they play strictly those notes that are on the sheet music.

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<v Speaker 2>And take my word for it is somebody who's been

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<v Speaker 2>in the courtroom when this has happened. The effect of

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<v Speaker 2>hearing a handful of notes played on a keyboard is

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<v Speaker 2>so different from hearing the recorded music that it becomes

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<v Speaker 2>very hard for a jury that then jump to the

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<v Speaker 2>conclusion that that's the same as the recorded music.

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<v Speaker 1>The plaintiffs are claiming that Seron deliberately and intentionally copied

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

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<v Speaker 1>that Seron quote recognized the magic of gay song, and

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<v Speaker 1>he had decided to capture a bit of that magic

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<v Speaker 1>for his own benefit. Isn't that a big ask for

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<v Speaker 1>the jury? When Saron said he came up with the

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<v Speaker 1>song after the death of his grandfather.

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<v Speaker 2>It's substantially hyperbole. And the mistake that some trials make

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<v Speaker 2>in buying into their own hyperbole is that they end

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<v Speaker 2>up setting a very high bar of proof. Because the

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<v Speaker 2>jury hears that statement, they think, oh, in order to

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<v Speaker 2>find for the plaintiff here, I have to find that

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<v Speaker 2>Ed Shard set out to intentionally deliberately copy this specific song,

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<v Speaker 2>which isn't necessarily the law here, but they now think

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<v Speaker 2>that thanks to the plaintiff's opening.

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<v Speaker 1>Here's what Sharon said last year after winning an infringement

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<v Speaker 1>trial in Britain over another one of his hits, Shape

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<v Speaker 1>of You.

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<v Speaker 3>There's only so many nights and very few chords used

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<v Speaker 3>in pop music. Coincidence is bound to happen if sixty

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<v Speaker 3>thousand songs are being released every day on Spotify, there's

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<v Speaker 3>twenty two million songs a year, and there's only twelve

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<v Speaker 3>nights that are available.

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<v Speaker 1>Sharon's defense seem to be arguing something like that. In

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<v Speaker 1>this case, what do they have to prove?

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<v Speaker 2>The core of the copyright infringement argument by the plaintiff

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<v Speaker 2>is that both songs have a or chord progression that

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<v Speaker 2>it ends now the second chord in that for chord

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<v Speaker 2>progression is slightly different. The argument that the Senate it

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<v Speaker 2>sharing's attorneys have to make is that those chord progressions

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<v Speaker 2>are very limited, and we all know if there's only

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<v Speaker 2>eight notes in the octave scale, right, But even when

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<v Speaker 2>you combine those notes into chords. For different genres of music,

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<v Speaker 2>there are limits on the number of chord progressions available

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<v Speaker 2>to actually make it sound like what you want it

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<v Speaker 2>sound like. So in the pop music industry there's actually

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<v Speaker 2>very few chord progressions that are available. It's a little

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<v Speaker 2>bit different from blues music, where you have a slightly

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<v Speaker 2>larger range of chord progressions available. But again it's finite.

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<v Speaker 2>And the argument that has been made over the years

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<v Speaker 2>is that where you have this finite group of notes

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<v Speaker 2>and finite group of chord progressions, you can't allow any

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<v Speaker 2>song or group of songs, to an effect monopolize them

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<v Speaker 2>by having gotten there first with their selection in notes

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<v Speaker 2>chord progressions. That's not what the Copyright Act is supposed

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<v Speaker 2>to be about. It's supposed to protect unique expression and

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<v Speaker 2>not merely the use of as people often said, the

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<v Speaker 2>building blocks of a pop song. And so I hope

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<v Speaker 2>that explains it. That is the fundamental battle that has

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<v Speaker 2>been going on, not only in this courtroom, but in

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<v Speaker 2>numerous courtrooms for the last fifteen to twenty years.

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<v Speaker 1>On Thursday, Sharon took the stand in his defense case,

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<v Speaker 1>and from all accounts, did very well.

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<v Speaker 2>He talked through the process by which he created Thinking

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<v Speaker 2>out Loud, the song of issue, and talked about it

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<v Speaker 2>in incredible detail. And this is what was important to me.

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<v Speaker 2>He remembered exactly what he was doing at the time.

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<v Speaker 2>His collaborator, Amy Wadge, was in his apartment. He goes,

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<v Speaker 2>I'm going to go take a shower to a shower,

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<v Speaker 2>came out. She was messing with some pop chords and

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<v Speaker 2>putting them in different arrangement, and he goes, hey, I

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<v Speaker 2>think he got something there, and they started tinkering with it.

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<v Speaker 2>And he remembers the process so distinctly that it lends

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<v Speaker 2>credibility to his assertion that he didn't borrow this from

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<v Speaker 2>any other artist. Second thing that was really interested about

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<v Speaker 2>his testimony was his comment that he works with Amy

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<v Speaker 2>Wigs all the time. They're just really good at pulling

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<v Speaker 2>up music quickly. He said that since they were both

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<v Speaker 2>in New York City for this trial over the last

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<v Speaker 2>four days, did written ten songs back in the hotel room,

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<v Speaker 2>I mean, which is just phenomenal. But the point that

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<v Speaker 2>the defense was trying to make is this guy's just

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

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<v Speaker 2>doesn't need to steal from anybody else. And I thought

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<v Speaker 2>that was very impactful.

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<v Speaker 1>So when did Sharon whip out his guitar and start singing?

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<v Speaker 2>His own lawyers started asking him about the testimony during

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<v Speaker 2>the plaintiff's case from their expert, the University of Vermont professor,

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<v Speaker 2>who made the argument that both songs have a four

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<v Speaker 2>chord progression, although there is one difference in the four

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<v Speaker 2>chord ascending progression, specifically in the second chord, that it's

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<v Speaker 2>a variant chord, that it's easily substituted and is not

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

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

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<v Speaker 2>And he whipped out his guitar, which had been pre

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<v Speaker 2>positioned behind the witness stand before anybody'd come into the courtroom.

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<v Speaker 2>Nobody would know it was there. And once somebody like

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<v Speaker 2>Ed Sharon has a guitar in his hand, the planet's

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<v Speaker 2>attorney can get up an objectives much as he wants,

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<v Speaker 2>but that jury is going to resent it if he's

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<v Speaker 2>not allowed to play. And so he started playing the song,

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<v Speaker 2>and he played it two different ways. He played it

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<v Speaker 2>with the chord progression of the actual song and then

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<v Speaker 2>the chord progression from the Marvin Gay songs. It's in

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<v Speaker 2>the very opening of the entire song, and the University

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<v Speaker 2>of Vermont professor for the planet admit it that the

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<v Speaker 2>rest of the song is different. So they're only now

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<v Speaker 2>fighting over this four chord ascending progression. And he says, says,

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<v Speaker 2>see how that doesn't work. It doesn't substitute in the

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<v Speaker 2>way the University of Vermont professor was insisting he does.

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<v Speaker 2>He says, do you hear how that works differently, And

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<v Speaker 2>a number of the jurors started nodding their head, you know,

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<v Speaker 2>as if in agreement. And that is a very telling

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<v Speaker 2>And if there had been a settlement offer on the

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<v Speaker 2>table from the defense, I would immediately playing if Overnight

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

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<v Speaker 2>this before, how challenging it is to bring a case

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<v Speaker 2>against these mega celebrities like Katy Perry, Led Zeppelin, Taylor Swift.

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

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

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<v Speaker 2>they see the hoopla that's going on at the courthouse.

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<v Speaker 2>They know he's a big celebrity because of all the

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<v Speaker 2>hoopla that they see going on, and then he plays

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<v Speaker 2>guitar and things to them. I mean, can you imagine

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<v Speaker 2>going back into the jury room that and voting against

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<v Speaker 2>this guy who's got a sort of really cute levea

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<v Speaker 2>will look.

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

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<v Speaker 1>That number seems out of this.

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<v Speaker 2>World and I'm dying to see how they're going to

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<v Speaker 2>prove that up. That's another unfortunate trend in litigation these

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<v Speaker 2>days to just attach some enormous number at the end

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<v Speaker 2>end of the lawsuit, you set out everything that you're

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<v Speaker 2>complaining of, and then at the end of lawsuit in

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<v Speaker 2>the papers you say, accordingly, play Off seeks one hundred

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<v Speaker 2>million dollars in damages plus attorneys fees and costs. It's

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<v Speaker 2>just unfortunate. It's done to get media attention. The media

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<v Speaker 2>will go, well, this must be an important lawsuit is

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<v Speaker 2>there's one hundred million dollars of the line. The reality

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<v Speaker 2>is that even if there's a copyright infringement found, the

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<v Speaker 2>best they can hope for is some percentage of the

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<v Speaker 2>royalties that mister Shearon has enjoyed from the copyright that

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<v Speaker 2>he had in the song, and I don't know what

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<v Speaker 2>that number would be. It may still be a large

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<v Speaker 2>number in the sense that it's seven figures. If you

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<v Speaker 2>recall the Blurred Lines case of a couple of years ago,

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<v Speaker 2>they similarly asked for a large number and ended up

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<v Speaker 2>receiving five point four million dollars. I believe was the

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<v Speaker 2>final round five million dollars, which was by orders of

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<v Speaker 2>magnitude smaller than what they'd been asking for.

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<v Speaker 1>We've talked about since Blurred Lines really about the increasingly

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<v Speaker 1>litigious music industry, and I know this draw was put

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<v Speaker 1>off until the Ninth Circuit came out with the Stairway

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<v Speaker 1>to Heaven decision. Are lawyers watching this case not only

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<v Speaker 1>because of Ed Sheeran, but because of what law may be.

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<v Speaker 2>Made, So copyright lawyers, music lawyers, and academics they're following

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<v Speaker 2>this case very closely. There has been over the last

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<v Speaker 2>decade or so a trend in copyright infringement of songs

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<v Speaker 2>that really started with the Blurred Lines case. In that case,

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<v Speaker 2>some interesting decisions by the District court and a curious

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<v Speaker 2>jury decision ended up in a finding that Rob Thick

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<v Speaker 2>and Farroh had infringed Marvin Gaye's song. It went up

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<v Speaker 2>on appeal on the Ninth Circuit and the appel Court

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<v Speaker 2>struggled and really came up with a disjointed opinion that

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<v Speaker 2>at the end of the day affirmed the jury award,

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<v Speaker 2>which set off a feeding frenzy amongst PLAINUS lawyers bringing

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<v Speaker 2>lawsuits such as this one against Ed Sharon. A couple

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<v Speaker 2>of years later, there was, as part of that feeding frenzy,

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<v Speaker 2>a lawsuit brought against the group Led Zeppelin over their

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<v Speaker 2>Stairway to Heaven, making many of the same sort of

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<v Speaker 2>allegations as in the Blurred Lines case and premise done

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<v Speaker 2>the same sort of legal argument. That case went up

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<v Speaker 2>to the Ninth Circuit in front of a different panel

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<v Speaker 2>of three judges who seem to understand or at least

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<v Speaker 2>have better understanding of copyright law and the field of music,

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<v Speaker 2>and being more cohesive in their views, came out with

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<v Speaker 2>a very important decision in which they said that there

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<v Speaker 2>are some elements in music that are so commonplace that

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<v Speaker 2>they need to be virtually identical to constitute infringement. So

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<v Speaker 2>in general, copyright infringement can be proved by just substantial similarity,

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<v Speaker 2>not identical works. Just substantial similarity is good enough. So

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<v Speaker 2>here the Ninth Circuit in a landmark case saying that, well,

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<v Speaker 2>not always in the field of music. We're not going

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<v Speaker 2>to give outnopolies over notes or chord progressions or riffs.

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<v Speaker 2>Where were going to say that these are building blocks

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<v Speaker 2>of all song And in order further to be a

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<v Speaker 2>copyright infringement, you're going to have to have virtually identical treatment.

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<v Speaker 2>So the substantial similarity rubric went out the door. Judge Stanton,

0:13:17.640 --> 0:13:20.840
<v Speaker 2>I mean this case was filed way back in twenty seventeen.

0:13:21.280 --> 0:13:24.120
<v Speaker 2>Judge Stanton at some point had it called his attention

0:13:24.240 --> 0:13:26.240
<v Speaker 2>that this led Zeppelin case was up on a deal

0:13:26.720 --> 0:13:31.079
<v Speaker 2>to the Ninth Circuit, and he deliberately postponed the trial

0:13:31.280 --> 0:13:33.360
<v Speaker 2>in the ed sharing lawsuit to see what the Ninth

0:13:33.400 --> 0:13:35.120
<v Speaker 2>Circuit would do, and he said this, I want to

0:13:35.160 --> 0:13:37.840
<v Speaker 2>see how they handle it because it will be informative here.

0:13:38.280 --> 0:13:41.600
<v Speaker 2>And then the pandemic hit and as you know, Ed

0:13:41.600 --> 0:13:44.959
<v Speaker 2>Shearing literally could not get across the Atlantic. He was

0:13:45.040 --> 0:13:48.600
<v Speaker 2>quarantined in Britain for the longest time. And that's why

0:13:48.600 --> 0:13:50.679
<v Speaker 2>it's taken six years to get this to trial. There

0:13:50.720 --> 0:13:52.920
<v Speaker 2>was that delay for the led Zeppelin case and the

0:13:52.920 --> 0:13:57.080
<v Speaker 2>pandemic or finally a trial, and Judge Stanton said that

0:13:57.080 --> 0:13:59.880
<v Speaker 2>that led Zeppelin case was very informative in how he

0:14:00.000 --> 0:14:02.120
<v Speaker 2>we're going to handle this case. So now we come

0:14:02.160 --> 0:14:04.920
<v Speaker 2>to the current time and the question that lawyers and

0:14:04.960 --> 0:14:08.360
<v Speaker 2>academics and musicologists are following is this is he going

0:14:08.400 --> 0:14:12.920
<v Speaker 2>to in this instance hold the plaintiff Townsend's airs. He's

0:14:12.960 --> 0:14:14.800
<v Speaker 2>going to hold them to that standard set that by

0:14:14.800 --> 0:14:18.520
<v Speaker 2>the Ninth Circuit that there has to be virtual identity

0:14:18.760 --> 0:14:21.640
<v Speaker 2>of the taken elements of the song, and we're gonna

0:14:21.640 --> 0:14:26.200
<v Speaker 2>have to see. The general wisdom out there in my

0:14:26.320 --> 0:14:29.600
<v Speaker 2>field is that we've seen the pendulum swing, that it

0:14:29.720 --> 0:14:32.520
<v Speaker 2>swung way far one way during the board Line's case,

0:14:32.600 --> 0:14:35.640
<v Speaker 2>and it's stuf swung back with the led Zeppelin decision.

0:14:35.880 --> 0:14:38.520
<v Speaker 2>And the question is is that pendulum going announce swing

0:14:38.640 --> 0:14:41.440
<v Speaker 2>back towards blurred line someplace built or stay out there

0:14:41.480 --> 0:14:44.040
<v Speaker 2>where the led Zeppelin decision has it. And that's why

0:14:44.080 --> 0:14:46.960
<v Speaker 2>this is the important case. It's the first real opportunity

0:14:47.400 --> 0:14:52.080
<v Speaker 2>to see what that led Zeppelin decision means in practical

0:14:52.440 --> 0:14:53.520
<v Speaker 2>terms of a real trial.

0:14:54.720 --> 0:14:57.760
<v Speaker 1>Sharon took the stand last April involving another one of

0:14:57.760 --> 0:15:01.120
<v Speaker 1>his hits, the twenty seventeen Shape of You, and a

0:15:01.240 --> 0:15:03.920
<v Speaker 1>judge ruled in his favor and award him more than

0:15:03.960 --> 0:15:06.960
<v Speaker 1>one point one million dollars. He settled a lawsuit over

0:15:07.000 --> 0:15:09.880
<v Speaker 1>another one of his hits for twenty million in twenty

0:15:09.920 --> 0:15:14.000
<v Speaker 1>seventeen over the hit photograph. He's being sued a lot.

0:15:14.040 --> 0:15:16.560
<v Speaker 2>Several things that are going on here. First, planes don't

0:15:16.600 --> 0:15:23.040
<v Speaker 2>sue over copyright infringement against someone who's not successful artist, writer, filmmaker.

0:15:23.240 --> 0:15:25.400
<v Speaker 2>There's no money to be had. So the fact that

0:15:25.440 --> 0:15:29.040
<v Speaker 2>you're as a successful singer songwriter zed Sharan sets you

0:15:29.120 --> 0:15:31.320
<v Speaker 2>up as a target in the first place. The second

0:15:31.360 --> 0:15:33.680
<v Speaker 2>thing that's going on here is that early in his

0:15:33.720 --> 0:15:37.360
<v Speaker 2>career there were a couple charges of copyright infringement alleged him,

0:15:37.640 --> 0:15:41.040
<v Speaker 2>and in retrospect he arguably should not have settled them.

0:15:41.240 --> 0:15:43.560
<v Speaker 2>You start settling them, you go to the top of

0:15:43.560 --> 0:15:45.440
<v Speaker 2>the target list. You may be on the target list

0:15:45.440 --> 0:15:47.280
<v Speaker 2>for being successful and adding a lot of money, but

0:15:47.320 --> 0:15:49.000
<v Speaker 2>you go to the top of that target list when

0:15:49.040 --> 0:15:52.600
<v Speaker 2>it becomes known in the plaintiff community that you're not

0:15:52.720 --> 0:15:55.280
<v Speaker 2>going to fight, you're going to settle and pay out,

0:15:55.280 --> 0:15:58.320
<v Speaker 2>because that's what they want. The planiffs don't want a trial,

0:15:58.320 --> 0:16:01.040
<v Speaker 2>they don't want a lengthy legal dispute them. They just

0:16:01.040 --> 0:16:03.040
<v Speaker 2>want to payout. And if you're that kind of artist

0:16:03.080 --> 0:16:05.320
<v Speaker 2>who's going to settle over and over again, you're going

0:16:05.360 --> 0:16:06.920
<v Speaker 2>to go to the top of the target list. The

0:16:06.960 --> 0:16:09.320
<v Speaker 2>third thing that's going on, though, is just the nature

0:16:09.400 --> 0:16:12.800
<v Speaker 2>of the sort of pop music that Ed Sheeran writes

0:16:12.840 --> 0:16:16.400
<v Speaker 2>and performs. As I said before, within his sort of

0:16:17.200 --> 0:16:21.880
<v Speaker 2>wing of the pop music genre, there's a limit, a

0:16:22.000 --> 0:16:24.120
<v Speaker 2>very finite limit on the number of chord progressions you

0:16:24.160 --> 0:16:26.840
<v Speaker 2>can use. And you could probably take apart almost any

0:16:27.040 --> 0:16:30.960
<v Speaker 2>current top twenty pop chart song and find chord progressions

0:16:31.040 --> 0:16:33.480
<v Speaker 2>used by a recording artist twenty years ago if you

0:16:33.520 --> 0:16:36.360
<v Speaker 2>wanted to. And so it's not any one thing they're

0:16:36.360 --> 0:16:39.040
<v Speaker 2>not picking on Ed Sheeran, and I don't think you

0:16:39.040 --> 0:16:42.440
<v Speaker 2>can draw the conclusion that somehow he's a copyright infringer

0:16:42.440 --> 0:16:44.960
<v Speaker 2>from all this. It's just a set of circumstances that

0:16:45.080 --> 0:16:48.600
<v Speaker 2>have landed him into multiple lawsuits. And he has finally

0:16:48.640 --> 0:16:51.320
<v Speaker 2>apparently taken the advice of some of his smarter and

0:16:51.400 --> 0:16:54.320
<v Speaker 2>singli ais and started to fight these so as you

0:16:54.320 --> 0:16:57.920
<v Speaker 2>said last year, he bought the shape of you copyright

0:16:57.920 --> 0:17:00.120
<v Speaker 2>infringe of my charges and one now I will well

0:17:00.240 --> 0:17:03.600
<v Speaker 2>ms Ice here. That lawsuit was brought in the United Kingdom.

0:17:03.760 --> 0:17:06.400
<v Speaker 2>It was brought under the UK's copyright law, which does

0:17:06.440 --> 0:17:08.919
<v Speaker 2>have some differences from American copyright law, and it was

0:17:08.960 --> 0:17:11.520
<v Speaker 2>decided by a judge. And the fact that there were

0:17:11.560 --> 0:17:14.320
<v Speaker 2>attorney's fees awarded, it was not a reflection on the

0:17:14.400 --> 0:17:17.480
<v Speaker 2>quality or the merits of the planet's lawsuit. In Britain,

0:17:17.560 --> 0:17:19.960
<v Speaker 2>unlike the United States, if you lose, you pay the

0:17:20.000 --> 0:17:22.760
<v Speaker 2>other guy's attorney's fees no matter what. Even if you

0:17:22.800 --> 0:17:25.040
<v Speaker 2>had the best orned suit in the world and you

0:17:25.200 --> 0:17:28.119
<v Speaker 2>just happen to lose on some technicality, you're stuck with

0:17:28.160 --> 0:17:29.399
<v Speaker 2>the other guy's legal fees.

0:17:29.560 --> 0:17:33.199
<v Speaker 1>Thanks so much, Terry. That's intellectual property litigator Terrence Ross