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Speaker 1: This is Bloomberg Law.

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Speaker 2: Are plaintiff's leries involved in a kind of competition in Congress?

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Speaker 2: Force a judicial code on the justices?

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Speaker 1: Interviews with prominent attorneys in Bloomberg Legal Experts.

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Speaker 2: My guest is former federal prosecutor Robert min Joining me

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Speaker 2: is Bloomberg Law reporter Kyle Janner, and.

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Speaker 1: Analysis of important legal issues, cases and headlines.

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Speaker 2: Is it unusual a grand jury like this to suspect

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Speaker 2: people aren't telling the truth? One of the first times

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Speaker 2: the Justice Department has called for the breakup of a

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Speaker 2: major company.

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Speaker 1: Bloomberg Law with June Grosso from Bloomberg Radio.

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Speaker 2: Welcome to the best of Bloomberg Law. Tonight, we'll look

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Speaker 2: back at some high profile intellectual property cases. Will ed

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Speaker 2: Shearon's copyright win help other songwriters? The Supreme Court will

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Speaker 2: decide a trademark clash involving a chewable dog toy that

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Speaker 2: mimics the Jack Daniels whiskey bottle, and Ermez wins the

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Speaker 2: first FT trademark trial.

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Speaker 3: Wow, cool a bag?

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Speaker 2: Do you like it?

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Speaker 4: Hello? I'm a girl. It's a purse, not just a purse,

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Speaker 4: It's a burken bag. I went to school a guy

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Speaker 4: named brickin. I don't think this is the same burkin.

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Speaker 2: Oh Rory Gilmour may not have known about the ultimate

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Speaker 2: status symbol, but her grandmother did.

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Speaker 4: Oh my god, a Burken bag. You've heard of it.

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Speaker 4: Of course, that's a very nice purse. Oh maybe I

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Speaker 4: shouldn't use it. Oh No, a Birken bag is meant

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Speaker 4: to be used and seen.

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Speaker 2: The iconic Burken bags range in price from twelve thousand

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Speaker 2: to more than three hundred thousand dollars, and there's a

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Speaker 2: six year waiting list to purchase one. So luxury brand

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Speaker 2: Hermes went to trial to protect its valuable rights to

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Speaker 2: the Burken trademark, suing an artist for selling Metaburken NFTs

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Speaker 2: digital images depicting the burkeen but covered in colorful, cartoon

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Speaker 2: unish fur. The artist Mason Rothschild claimed the meta burkins

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Speaker 2: were works of art and protected speech under the First Amendment,

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Speaker 2: but the jury disagreed, finding the NFTs were more like

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Speaker 2: consumer products subject to strict trademark laws with no First

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Speaker 2: Amendment protections. My guest this hour is intellectual property litigator

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Speaker 2: Terrence Ross a partner Katin Euchen Rosenman Terry. The jury

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Speaker 2: found Wrothschild guilty of trademark infringement, dilution and cyber squatting.

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Speaker 2: Do we know what tests they used to come to

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Speaker 2: that decision.

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Speaker 3: Well, the judge specifically asked the jury to determine whether

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Speaker 3: or not the meta burkins produced by mister Rothschild or

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Speaker 3: artistic works or consumer products, and they answered that question

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Speaker 3: saying that they did not view them as artwork. They

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Speaker 3: viewed them as consumer products. And so we have to

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Speaker 3: assume that they at least considered the Rogers test, because

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Speaker 3: one of the requirements of the Rogers test is that

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Speaker 3: it be an expressive work, you know, artistic works. It

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Speaker 3: would have been rejected out of hand.

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Speaker 2: There's this blurry line between art and commercial products. So

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Speaker 2: the jury determined that NFTs are more akin to commercial products.

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Speaker 2: Does that have any impact on future cases?

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Speaker 3: Not? Really. The finding of the jury is a fact finding.

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Speaker 3: Legal findings are left to the judge of the court.

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Speaker 3: The jury only makes fact findings, and the factual circumstances

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Speaker 3: changed from case to case. This is particularly true in

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Speaker 3: trademark law, where you have widely different facts producing widely

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Speaker 3: different results, so that finding by the jury is limited

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Speaker 3: to this specific case against mister Rothschild.

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Speaker 2: So people have been looking at this as a case

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Speaker 2: that has the potential to clarify how trademark law applies

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Speaker 2: to NFTs. Does it do that well?

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Speaker 3: I don't think a single case, unless it happens to

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Speaker 3: be in front of the Supreme Court, is going to

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Speaker 3: clarify the law in this area. What this case does

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Speaker 3: do is lay down a marker on behalf of trademark owners.

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Speaker 3: It points in the direction of findings that the metaverse

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Speaker 3: is subject to the landmark the US trademark Lause, and

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Speaker 3: it will encourage other trademark owners to now bring to

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Speaker 3: enforce their rights in the metaverse. I am aware to

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Speaker 3: clients of ours who have been thinking it was bringing

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Speaker 3: law suits waiting to see how this came out, and

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Speaker 3: this will encourage them. Now. The other thing this case

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Speaker 3: does is that lays the foundation for appellate decisions. So

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Speaker 3: now there is a concrete verdict in a case that

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Speaker 3: can go up on appeal and we can see what

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Speaker 3: the appellate courts think of the application trademark lause to NFTs.

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Speaker 5: Yeah.

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Speaker 2: So Rothschild's attorneys said that they'll take every legal avenue

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Speaker 2: that they have. What are the legal avenues that they have.

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Speaker 3: So the very first option that the defense has here

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Speaker 3: is to file emotion with Judge Raykoff, asking him to

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Speaker 3: set aside the jury verdict and to grant judgment to

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Speaker 3: the defense on the legal theories that are presented in

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Speaker 3: the case. This is going to be challenging for the defense.

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Speaker 3: It's something they will do, they have to do. But

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Speaker 3: Judge ray Coff basically said at the motion to this

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Speaker 3: miss stage that he was uncertain as to whether or

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Speaker 3: not there was sufficient factual predicate here for the defendant

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Speaker 3: to take advantage of the so called Rogers test, and

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Speaker 3: he wanted the jury to give him some advice on that,

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Speaker 3: and the jury gave him advice. They said, yes, there's

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Speaker 3: not a factual predicate here. This is not an expressive work.

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Speaker 3: It's not art, it's a consumer product, and the Rogers

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Speaker 3: test does not apply to consumer products at least, so

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Speaker 3: we think the Rogers test, which was from out this

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Speaker 3: court the Second Circuit, expressly says that a First Amendment

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Speaker 3: protection extends to the use of celebrity names in expressive

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Speaker 3: works where the use of the name is relevant to

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Speaker 3: the work and it's not intentionally misleading. And here that

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Speaker 3: key element that the jury says is missing is whether

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Speaker 3: or not this is an artistic work. So I think

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Speaker 3: they will lose the post trial motion unless he wants

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Speaker 3: to simply disregard the jury and they'll take it up

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Speaker 3: then on appeal to the Second Circuit. And this becomes

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Speaker 3: pretty important is the Second Circuit is the author of

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Speaker 3: the Rogers test, which the defense heavily relies upon here.

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Speaker 3: It is also one of the most important appellate courts

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Speaker 3: in the nation with respect to trademark claw and that's

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Speaker 3: where we will really get some guidance going forward into

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Speaker 3: the future. The Second Circuit affirms the verdict here and says, yes,

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Speaker 3: there's always trademark infringement. That's going to really be very

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Speaker 3: influential across the rest of the United States, even though

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Speaker 3: the Second Circuits perview is limited to the New York

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Speaker 3: and Connecticut.

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Speaker 2: The Supreme Court is hearing a case involving a Squeaky

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Speaker 2: dog toy and the Jack Daniels trademark. Could that decision

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Speaker 2: affect this case?

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Speaker 3: So in my view, that has always been the eight

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Speaker 3: hundred pound gorilla in the room that people that tend

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Speaker 3: to tag more here, particularly the judge in that case,

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Speaker 3: the Rogers test is squarely presented to the Supreme Court

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Speaker 3: as to whether it is a legitimate test, whether it

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Speaker 3: really exists, because remember Second Circuit made that up out

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Speaker 3: a whole clock. It's not in the trademark laws, it's

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Speaker 3: not statutory, it's judge made laws. And the Supreme Court

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Speaker 3: might say, well, there is no such thing in the

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Speaker 3: trademark lass. Or the Supreme Court could say, yes, we

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Speaker 3: have to have such tests as the Rogers test in

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Speaker 3: order to protect First Amendment interests in the trademark field,

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Speaker 3: but we don't like the way the Second Circuit works.

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Speaker 3: The test, our test will be and then they'll explain

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Speaker 3: what it is, or they could simply say, you know,

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Speaker 3: Rogers test is a great idea. It really protects First

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Speaker 3: Amendment interests. It works partly fine. We are narrowly cabinet

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Speaker 3: to protection of celebrity names used in artistic works or

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Speaker 3: toy expand it say, with greg expanded to expressive works

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Speaker 3: more generally. But so with all those question marks hanging

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Speaker 3: over this case, it really made no sense to try

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Speaker 3: it in mind you, other than say you're moving your

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Speaker 3: docket of cases down the road, because the whole thing

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Speaker 3: could be tossed out by a decision the Supreme Court,

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Speaker 3: and there might have to be a do over.

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Speaker 2: I don't think Ermez was in this for the money,

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Speaker 2: but the jury only awarded one hundred and thirty three

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Speaker 2: thousand dollars in damages. That's less than some Birkenbag's cost.

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Speaker 3: The point is Hermes only asked for about two hundred

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Speaker 3: and fifty thousand dollars, so the jury gave them a

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Speaker 3: portion of that. Trademark infringement cases don't typically result in

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Speaker 3: significant damage awards. Now, part of the specific reason here

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Speaker 3: is that miss Rothschild just didn't sell that many. I

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Speaker 3: think the evidence of trial was he sold fifty five

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Speaker 3: point two of these NFTs, and so he just didn't

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Speaker 3: generate that much profit. And the key in the trademark

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Speaker 3: area is what the plaintiff, the trademark owner gets is

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Speaker 3: a disgorgement of the ill gotten gains from the infringer.

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Speaker 3: So there's a cap on it to start with. Now,

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Speaker 3: what we are going to see here is a post

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Speaker 3: trial motion for attorney's fees, and those could be substantial

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Speaker 3: and I don't know whether the court will grant them,

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Speaker 3: but that is where the real hit on mister Rothschawk

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Speaker 3: could come from. But I think when you look at

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Speaker 3: this holistically, this case was never about recovering damages. This

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Speaker 3: case was about protecting the brand. The Birken trademark. Ermanes

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Speaker 3: apparently has specific plans in the metaverse, as many fashion

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Speaker 3: houses do, to start introducing their own NFTs, and it

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Speaker 3: needed this sort of trademark protection to extend to the metaverse.

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Speaker 3: And so this was a case about setting a precedent,

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Speaker 3: and I think they've been very successful in doing that.

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Speaker 2: I understand that fashion brands like Louis Vauton are now

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Speaker 2: filing applications for trademarks for design marks covering digital content,

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Speaker 2: including NFTs. Will that help them pursue these kinds of

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Speaker 2: claims in the future.

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Speaker 3: Yes, A registered trademark provides a brand owner with certain

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Speaker 3: procedural advantages, as well as the right to obtain attorney's

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Speaker 3: fees in a lawsuit, So there are advantages of that.

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Speaker 3: It is theoretically possible for a trademark owner to proceed

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Speaker 3: without a registration under a theory of unfair competition, but

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Speaker 3: I think the advantage here is to get the registration.

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Speaker 3: It should not be a difficult thing to do and

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Speaker 3: to have the full pana play then of trademark claims

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Speaker 3: and remedies available.

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Speaker 2: Coming up next on the Bloomberg Launch Show, Jerry Ross

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Speaker 2: and I will discuss the Supreme Court oral arguments in

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Speaker 2: that trademark clash involving the chewable dog toy that mimics

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Speaker 2: the Jack Daniels whiskey bottle. You're listening to Bloomberg.

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

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Speaker 2: At the center of a trademark dispute at the Supreme

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Speaker 2: Court was a chewable dog toy mimicking the iconic Jack

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Speaker 2: Daniels bottle, but with poop jokes. So perhaps it was

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Speaker 2: inevitable that there would be quips, laughter and confusion. Here's

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Speaker 2: Justice Samuel Alito asking the attorney for Jack Daniels, Lisa Blatt,

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Speaker 2: whether any reasonable person would think the whiskey company had

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Speaker 2: approved the use of its trademark on the dog toy.

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Speaker 3: A reasonable person would not think that Jack Daniels had.

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Speaker 1: To prove this. I think if you're selling urine, you're

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Speaker 1: probably gonna win on a motion to I mean, on

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Speaker 1: a twelve by six, but you're probably also violating some

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Speaker 1: state law.

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Speaker 4: But sure, oh, no, thought, you're not selling urine.

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Speaker 1: It's exactly this toy. I thought it.

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Speaker 3: Now, it's exactly this toy I'm sorry, which purportedly contains

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Speaker 3: some sort of dog I'm sorry.

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Speaker 1: L Okay, my bad, Justice Alito.

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Speaker 3: I don't know how old you are.

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Speaker 4: But you went to law school.

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Speaker 5: You're very smart, you're analytical, you have hindsight bias, and well, I.

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Speaker 1: Went to a law school where I didn't learn any laws.

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Speaker 2: So okay, but by the way, that was a diss

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Speaker 2: of Yale law school. Jokes aside, The issue was whether

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Speaker 2: the don toy, which includes references to old number two

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Speaker 2: and forty three percent Pooh by volume, is entitled to

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Speaker 2: First Amendment protection as a parody of the whiskey. But

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Speaker 2: just as Elena Kagan didn't get it.

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Speaker 1: In this case, what is there to it?

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Speaker 4: What is the parody here?

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Speaker 3: The parody?

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Speaker 1: Yeah, parody, because.

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Speaker 4: Maybe I just have no sense of humor. But what's

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Speaker 4: the parody?

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Speaker 2: My guest this hour is intellectual property litigator Terrence Ross

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Speaker 2: a partner Katin Euchen Rosenman Terry. So many of the

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Speaker 2: Supreme Court arguments are so weighty, so heavy, but not

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Speaker 2: this one. I mean, the humor at times seemed to

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Speaker 2: sync to the level of the doctor here. And this

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Speaker 2: is a case we've been waiting for, so Terry, did

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Speaker 2: it meet your expectations.

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Speaker 3: I thought the actual argument, particularly from the Solicitor General's Office,

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Speaker 3: was particularly good and cut through a lot of the

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Speaker 3: murkiness and went straight to the heart of the issue.

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Speaker 3: I thought the tone of the questioning did, as you

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Speaker 3: describe it, descend a little bit into the gutter for

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Speaker 3: reasons I can't explain. Over about a year year and

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Speaker 3: a half, now, this court, with its new makeup, seems

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Speaker 3: to be unable to approach intellectual property cases without using

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Speaker 3: a raft of examples, many of which are sort of

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Speaker 3: ludicrous and really don't advance the ball much. But that

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Speaker 3: has been the name of the game in intellectual property cases.

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Speaker 3: You know, you go to the Supreme Court, argue one

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Speaker 3: of those, and you better be prepared for a bunch

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Speaker 3: of rather silly examples being tossed at you. And that's

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Speaker 3: how this hypothetical works. Now that hypothetical.

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Speaker 2: Works, does a parody have to be good? Because just

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Speaker 2: as Elena Ca said, she didn't get it.

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Speaker 3: Yeah, when I heard Justice Kagan asked that question and

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Speaker 3: say she didn't get it. I think the way she

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Speaker 3: phrased it is something like maybe I'm the only one

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Speaker 3: here who doesn't get it. And I felt like jumping

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Speaker 3: up and saying, no, I don't get it too. I

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Speaker 3: don't see where the parody is. I mean, I would

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Speaker 3: go so far as to describe this as merely sophomoreic humor,

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Speaker 3: and as Groucho Marx would say, that's even an insult

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Speaker 3: to sophomores. I don't see what the parody is. And

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Speaker 3: mister Cooper, who was representing VIP Products that produced this

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Speaker 3: dog toy, kept saying, you know it was a parody

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Speaker 3: in trying to explain why and it wasn't just justice cake,

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Speaker 3: And at one point Justice Jackson scheimed in said she

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Speaker 3: didn't get it either. So this is one of the

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Speaker 3: whole problems with the Rogers test. I mean, what the

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Speaker 3: Rogers test says in its pure form is that the

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Speaker 3: name of a celebrity used in the title of an

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Speaker 3: expressive work does not constitute trademark infringement if it is

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Speaker 3: artistically relevant and not explicitly misleading. And various justice attack

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Speaker 3: what does it mean to be artistically relevant. Other justices

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Speaker 3: attacked what's an expressive work is everything that has a

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Speaker 3: statement on a T shirt and expressive work automatically. And

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Speaker 3: yet one other justice, i believe it was Justice Court

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Speaker 3: such attack this concept of what does it mean to

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Speaker 3: be explicitly misleading? Since the standard under the landamac the

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Speaker 3: trademark laws is confusion not misleading that one. And so

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Speaker 3: there seemed to be this consensus on the Court that

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Speaker 3: the test was very difficult to understand or apply. And frankly,

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Speaker 3: mister Cooper, representing the IP products didn't do much to

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Speaker 3: out it. Indeed, he came up with his own tests.

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Speaker 2: Well, I would say, confusion, misleading, welcome to intellectual property law.

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Speaker 2: Would they ever be able to come up with a

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Speaker 2: test that's easier to follow than the Rogers test.

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Speaker 3: I'm not sure that the Rogers test is easy to follow.

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Speaker 3: I'm not sure that there's an alternative. And this was

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Speaker 3: an issue that was explicitly posed by Justice Jackson, who

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Speaker 3: essentially said, Okay, well, what do we replace it with?

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Speaker 3: I agree with you though that there seems to be

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Speaker 3: a lot of confusion at the Court on this, and

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Speaker 3: I think it reflects the new makeup of the Court

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Speaker 3: and I've said this before and your show June. The

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Speaker 3: loss of Justice Ginsberg the loss of Justice Bryer were

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Speaker 3: body blows to the Supreme Court with respect to intellectual

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Speaker 3: property jurisprudence. They were the two justices who had experience

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Speaker 3: academic experience and judicial experience in copyright and trademarks. None

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Speaker 3: of the current sitting justices do. And it was reflected

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Speaker 3: in the argument. There seemed to be a really poor

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Speaker 3: grasp of how the Landham Act, which sets out the

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Speaker 3: US trademark laws works, questions that to trademark lawyers didn't

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Speaker 3: make any sense. And as Black, the Council for Jack

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Speaker 3: Daniels did a very nice job of respectfully trying to

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Speaker 3: correct their misunderstanding a fundamental trademark law. But it was

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Speaker 3: a steep mountain the climate. I'm not sure she got there.

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Speaker 2: The Rogers Test is not very popular in some quarters,

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Speaker 2: is it?

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Speaker 3: The trademark owners desperately want to get rid of the

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Speaker 3: Rogers Test. There is an element within the academic community

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Speaker 3: that wants to get rid of the Rogers Test, and

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Speaker 3: the Biden administration, to their credit, in a very simple,

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Speaker 3: plain spoken, but effective argument, said outright that the Rogers

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Speaker 3: Test was made up by the Second Circuit, It has

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Speaker 3: no statutory basis and it should be discarded. That's what's

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Speaker 3: that issue here. And the arguments in favor of eliminating

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Speaker 3: the Rogers Test in Toto are pretty daring strong. As

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Speaker 3: Justice Commas has, what's the textual support for that? And

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Speaker 3: all three councils said there is not. Justice Alito chime did, well,

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Speaker 3: what about the First Amendment and the trademark law that

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Speaker 3: we now have. The land of mak has been held

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Speaker 3: consistent with First Amendment no less than four times, and

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Speaker 3: so it's sort of an odd question. But Justice Alito

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Speaker 3: was the one justice who seemed desperate to hang on

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Speaker 3: to the Rogers Test. Three justices by Mike count did

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Speaker 3: not ask a single question, and that was Justice Barrett,

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Speaker 3: Justice Kavanaugh and the Chief Justice. They are all textualists.

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Speaker 3: They are probably looking at this appeal from the point

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Speaker 3: of view that Justice Thomas expressed and may have expressed

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Speaker 3: on the part of all of them. That's making it

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Speaker 3: unnecessary for them to talk what is the textual support

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Speaker 3: for the Rogers Test? And as the government said, there

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Speaker 3: is no. The Rogers Test is an exception to illegal

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Speaker 3: activity and it does not have any textual basis, and

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Speaker 3: therefore I think it's very much at risk, particularly if

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Speaker 3: this click of justices who did not engage in debate,

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Speaker 3: although to remove.

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Speaker 2: It despite all the confusion, what's your take on whether

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Speaker 2: Jack Daniels will win here?

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Speaker 5: It lost at the Ninth Circuit.

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Speaker 3: So the overarching sentiment seemed to be that the Ninth

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Speaker 3: Circuit got this raw and that should be reversed and

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Speaker 3: that would be technically a win or Jack Daniels. The

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Speaker 3: Ninth Circuit decision indeed took the Rogers test and maximalized it,

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Speaker 3: creating a lot of problems. So I think where the

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Speaker 3: Court's going to go with this is to say the

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Speaker 3: Ninth Circuit got it raw, it's got to go back

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Speaker 3: to the district court, and they've got to consider parody.

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Speaker 3: And then the next part is the question mark. Do

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Speaker 3: they say, we're not going to decide the Rogers question

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Speaker 3: now because this case isn't right. We're going to send

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Speaker 3: it back and let it come back up the chain again,

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Speaker 3: so three years from now we'll be right here again.

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Speaker 3: So that's one option, and it's a favorite option of

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Speaker 3: this Supreme Court. The second option is that Justice Thomas

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Speaker 3: cobbles together five votes to do what the Biden administration

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Speaker 3: wants to get rid of the Rogers test. The third

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Speaker 3: option is that somebody cobbles together are enough votes to

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Speaker 3: change the Rogers test. I think that's the least likely

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Speaker 3: outcome here. Indeed, I could see this being one of

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Speaker 3: these decisions where you get five six votes to reverse

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Speaker 3: and send it back to the district court, and you

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Speaker 3: don't get enough votes on any of the right, so

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Speaker 3: that remains undecided. So I think that's probably what I

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Speaker 3: would bet on if I had to bet here, that

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Speaker 3: the case we'll go back to the discord, which is

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Speaker 3: a win for Jack Daniels, but without any guidance on

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Speaker 3: the Rogers staff, which would be a.

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Speaker 2: Shape coming up next. Ed Sheeran wins over the jury.

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Speaker 2: This is Bloomberg.

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

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Speaker 6: I'm obviously very happy with the outcome of the case,

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Speaker 6: and it looks like I'm not having to retire from

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Speaker 6: my day job after all. But at the same time,

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Speaker 6: I'm unbelievably frustrated that basis claims like this are allowed

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Speaker 6: to go to court at all.

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Speaker 2: It's the second copyright infringement trial ed Shearon has had

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Speaker 2: to go through in a year, and he made a

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Speaker 2: dramatic vow from the witness stand that he would quit

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Speaker 2: music if he was found guilty of infringing Marvin Gaye's

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Speaker 2: nineteen seventy three classic Let's Get It On. But after

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Speaker 2: a two week trial, it took a jury only two

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Speaker 2: hours to come out with a verdict clearing Shearing and

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Speaker 2: finding that he and his co writer had created his

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Speaker 2: Grammy winning hit Thinking Out Loud independently, which is an

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Speaker 2: absolute defense against copyright infringement. Sharon had defended himself with

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Speaker 2: his guitar, demonstrating for the jury how similar chord progressions

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Speaker 2: are commonplace musical elements found in numerous songs that no

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Speaker 2: songwriter can own. He did a similar demonstration on The

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Speaker 2: Howard Stern Show on Sirius XM.

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Speaker 7: So my one is when your legs a work like

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Speaker 7: they used to before, and then there's ever told, do

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Speaker 7: you likely that I loved you?

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Speaker 2: And then.

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Speaker 7: People get ready, there's a chain of coming and then

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Speaker 7: what was the looks like we made it? Look how

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Speaker 7: far we've come? A baby and she breaks sty I

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Speaker 7: mean there was there was one hundred and one songs.

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Speaker 2: Despite the win, Sharon expressed frustration at the current litigation

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Speaker 2: frenzy that threatens songwriters.

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Speaker 6: It's devastating to be accused of seeing someone else's song

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Speaker 6: when we put so much work into our livelihoods. I'm

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Speaker 6: just a guy with a guitar who loves writing music

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Speaker 6: for people to enjoy.

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Speaker 2: Joining me is intellectual property litigator Terrence Ross, a partner

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Speaker 2: Katon Newchen, Rosenman Terry. The music industry was watching this

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Speaker 2: lawsuit with trepidation. Does the verdict alleviate the fears?

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Speaker 3: You know?

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Speaker 2: Will it discourage frivolous copyright lawsuits?

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Speaker 3: You would hope.

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Speaker 2: So.

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Speaker 3: It is certainly significant in that regard, and seems to

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Speaker 3: indicate that the pendulum in these copyright in song cases

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Speaker 3: has swung back in favor of the singer songwriters and

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Speaker 3: away from the plaintiffs. You know. This all started with

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Speaker 3: a twenty fifteen lawsuit against Pharrell Williams and Robin Thick

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Speaker 3: for their Blurred Lines song, which purportedly infringed Marvin Gay's

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Speaker 3: nineteen seventy seven Got to give it up, and an

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Speaker 3: enormous jury verdict that got reduced to a little bit

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Speaker 3: on appeal, but that's sort of created this target for

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Speaker 3: plaintiffs to aim at and encourage them to bring more lawsuits.

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Speaker 3: And now looking back, we've had multiple wins for defendants,

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Speaker 3: and it seems like that case involving Robin Thick and

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Speaker 3: Perrel Williams was actually an outlier and that we may

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Speaker 3: have made too much of it. And keep in mind

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Speaker 3: there was a unique situation going there and that robins

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Speaker 3: Thick had given just a dreadful deposition which you later

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Speaker 3: claimed he'd been high giving it, and they played that

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Speaker 3: to the jury and it was so bad, you know,

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Speaker 3: the videotape that it may have influenced the jury in

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Speaker 3: ways that we didn't fully comprehend at the time. Now,

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Speaker 3: with a fantastic performance and I can't call it anything

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Speaker 3: less than performance, but a Sharon on the stand in

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Speaker 3: his case, we see how these cases really do favor

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Speaker 3: the defendant if the defendant is a credible person who

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Speaker 3: gives a good test pony and can explain the basis

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Speaker 3: of his song.

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Speaker 2: Yeah. I believe that it was the defense attorney in

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Speaker 2: the Blurred Lines case that said that Shearon made all

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Speaker 2: the difference here. He was so committed he was in

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Speaker 2: the court every day he was on stand from multiple days.

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Speaker 2: He's this nice guy, but also he took on the

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Speaker 2: defense now and again and even called the musicologist for

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Speaker 2: the other side.

440
00:24:17,400 --> 00:24:19,119
Speaker 5: So what he was doing was criminal.

441
00:24:19,600 --> 00:24:22,200
Speaker 3: You're exactly right, June. And he had made the mistake

442
00:24:22,280 --> 00:24:25,040
Speaker 3: early in his career of caving in and settling a

443
00:24:25,080 --> 00:24:29,880
Speaker 3: couple copyright lawsuits. The reality is that it's often cheaper

444
00:24:30,160 --> 00:24:33,000
Speaker 3: to settle some of these copyright suits than to spend

445
00:24:33,000 --> 00:24:35,720
Speaker 3: the money to defend against them. The problem is, if

446
00:24:35,720 --> 00:24:38,520
Speaker 3: you get that reputation, people just put you at the

447
00:24:38,520 --> 00:24:41,080
Speaker 3: top of their list of targets to go after for

448
00:24:41,160 --> 00:24:44,800
Speaker 3: copyright infringement, even though you've not been held libel for

449
00:24:44,840 --> 00:24:47,320
Speaker 3: copyright infringement and you don't think you did it. And

450
00:24:47,520 --> 00:24:49,680
Speaker 3: a couple of years ago, and Sharon apparently sent to

451
00:24:49,720 --> 00:24:53,800
Speaker 3: himself enough is enough. He defended aggressively a copyright lawsuit

452
00:24:53,920 --> 00:24:56,600
Speaker 3: in the UK, which he won. It was last year.

453
00:24:56,760 --> 00:24:59,760
Speaker 3: This case has been going on since before the pandemic

454
00:25:00,119 --> 00:25:03,359
Speaker 3: was brought and he's been aggressively defending in and I

455
00:25:03,440 --> 00:25:06,359
Speaker 3: think with this win, two wins in two years, sending

456
00:25:06,359 --> 00:25:09,080
Speaker 3: a very strong message that if you come after him

457
00:25:09,240 --> 00:25:12,399
Speaker 3: for copyright infringement. You better be prepared to go the distance,

458
00:25:12,440 --> 00:25:14,360
Speaker 3: and you better be prepared to get your rear end kicked,

459
00:25:14,400 --> 00:25:18,560
Speaker 3: because he is not giving in anymore, not settling these lawsuits,

460
00:25:18,640 --> 00:25:20,920
Speaker 3: and that's going to make all the difference going forward

461
00:25:21,160 --> 00:25:21,520
Speaker 3: for him.

462
00:25:21,880 --> 00:25:26,720
Speaker 2: The jury found that Seran had created Thinking out Loud independently.

463
00:25:27,080 --> 00:25:31,080
Speaker 2: That's an absolute defense against copyright infringement. Even if it's

464
00:25:31,119 --> 00:25:34,400
Speaker 2: a song you've heard and it might have influenced you, it.

465
00:25:34,440 --> 00:25:37,880
Speaker 3: Is an absolute defense. So you could say that two

466
00:25:38,040 --> 00:25:41,359
Speaker 3: songs have some substantial similarity, which is the test for

467
00:25:41,400 --> 00:25:45,480
Speaker 3: copyright infringement, but if the song was independently created, it

468
00:25:45,640 --> 00:25:49,160
Speaker 3: just doesn't matter that they're substantially similar. That's an absolute defense.

469
00:25:49,440 --> 00:25:52,280
Speaker 3: And the key I think here at this trial was

470
00:25:52,280 --> 00:25:54,080
Speaker 3: and sure in getting up on the stand, as you

471
00:25:54,080 --> 00:25:58,600
Speaker 3: said multiple times, and explaining the songwriting process in such detail,

472
00:25:58,960 --> 00:26:01,679
Speaker 3: even explaining he was to take a break, take a shower,

473
00:26:02,040 --> 00:26:05,360
Speaker 3: came back, his co writer was working on some chords.

474
00:26:05,520 --> 00:26:08,280
Speaker 3: The detail is what brought it home to the jury

475
00:26:08,320 --> 00:26:11,120
Speaker 3: that this wasn't in any sense of copying, that there

476
00:26:11,240 --> 00:26:14,320
Speaker 3: was a true creative process here, that he was able

477
00:26:14,359 --> 00:26:19,200
Speaker 3: to relate to them and explain an enormous specific factual

478
00:26:19,200 --> 00:26:22,080
Speaker 3: detail and then was backed up by his co writer

479
00:26:22,200 --> 00:26:23,879
Speaker 3: on this particular song, Gamy wadge.

480
00:26:24,119 --> 00:26:26,560
Speaker 2: Do you think the musicologists played a part in this?

481
00:26:27,040 --> 00:26:29,680
Speaker 2: I mean, whether one was better than the other, whether

482
00:26:29,680 --> 00:26:31,440
Speaker 2: the jury liked one more than the other.

483
00:26:31,760 --> 00:26:36,320
Speaker 3: So musicologists testify as expert witnesses. The only difference between

484
00:26:36,320 --> 00:26:39,640
Speaker 3: expert witness and the other witnesses that an expert witness

485
00:26:39,720 --> 00:26:42,720
Speaker 3: is allowed to offer his or her opinion based on

486
00:26:42,800 --> 00:26:46,240
Speaker 3: their expertise, whereas a lay witness can only testify to

487
00:26:46,760 --> 00:26:50,640
Speaker 3: facts that they actually saw witness experienced. And as a result,

488
00:26:50,840 --> 00:26:55,000
Speaker 3: sometimes jurors, because there's this process of qualifying an expert

489
00:26:55,040 --> 00:26:57,239
Speaker 3: making them seem to be great juris, say well, they

490
00:26:57,280 --> 00:26:59,720
Speaker 3: must know something more than we do because the judge

491
00:26:59,720 --> 00:27:01,200
Speaker 3: has been so. Like I said, they're an expert in

492
00:27:01,240 --> 00:27:03,200
Speaker 3: the field, and we may want to defer to them.

493
00:27:03,240 --> 00:27:05,400
Speaker 3: My experience of that in these sorts of cases where

494
00:27:05,440 --> 00:27:09,840
Speaker 3: you have a very articulate defendant who can explain the

495
00:27:09,880 --> 00:27:13,679
Speaker 3: songwriting process, that the musicologists sort of flip into the

496
00:27:13,720 --> 00:27:16,400
Speaker 3: background a little bit and are less important. Now that's

497
00:27:16,400 --> 00:27:19,400
Speaker 3: set here in this so called battle the experts between

498
00:27:19,440 --> 00:27:22,320
Speaker 3: the two musicologists It's clear that Edsurance god got the

499
00:27:22,320 --> 00:27:25,520
Speaker 3: better of the argument and got helped in that respect

500
00:27:25,680 --> 00:27:29,480
Speaker 3: enormously by Ed Shuron's own testimony. In his testimony during

501
00:27:29,520 --> 00:27:32,440
Speaker 3: his defense part of the case, Ed Sheeran specifically when

502
00:27:32,560 --> 00:27:37,040
Speaker 3: after the plain tests musicologists and explained how this particular

503
00:27:37,119 --> 00:27:39,320
Speaker 3: chord progression, or at least the second chord in the

504
00:27:39,359 --> 00:27:42,680
Speaker 3: chord progression, was not substitutable, and how it really made

505
00:27:42,720 --> 00:27:45,000
Speaker 3: a significant difference in how a pop song came out,

506
00:27:45,040 --> 00:27:47,440
Speaker 3: and he played and explained to the jury almost as

507
00:27:47,440 --> 00:27:50,520
Speaker 3: if he was his own musicologist expert. And I think

508
00:27:50,560 --> 00:27:53,359
Speaker 3: that's really was a turning point. His musicologist then picked

509
00:27:53,440 --> 00:27:55,560
Speaker 3: up on that theme and supported it and sort of

510
00:27:55,600 --> 00:27:58,040
Speaker 3: gave legal credence to it. But again, I think this

511
00:27:58,200 --> 00:27:59,840
Speaker 3: was ed Shurance testimony that won the.

512
00:27:59,800 --> 00:28:03,560
Speaker 2: Day jury verdict doesn't set any legal precedent, But the

513
00:28:03,640 --> 00:28:07,679
Speaker 2: way that Sharon testified about chord progressions he used that

514
00:28:07,720 --> 00:28:10,400
Speaker 2: are common among songwriters and.

515
00:28:10,480 --> 00:28:12,000
Speaker 5: Building blocks of music.

516
00:28:12,200 --> 00:28:16,000
Speaker 2: Do you think this provides a blueprint for other songwriters

517
00:28:16,080 --> 00:28:17,800
Speaker 2: accused of copyright infringement.

518
00:28:18,320 --> 00:28:22,520
Speaker 3: Well, the defense here certainly wrote a script on how

519
00:28:22,560 --> 00:28:28,280
Speaker 3: to handle this sort of copyright infringement lawsuit and if followed,

520
00:28:28,480 --> 00:28:31,040
Speaker 3: should yield simple results. The interesting thing about this whole

521
00:28:31,080 --> 00:28:34,800
Speaker 3: case is that the judge studiously avoided writing any decisions

522
00:28:34,880 --> 00:28:38,360
Speaker 3: that might have served in any way as presidential. It

523
00:28:38,480 --> 00:28:41,680
Speaker 3: was very curious. It makes it very difficult to challenge

524
00:28:41,680 --> 00:28:43,440
Speaker 3: on a Biele as well. But you have here as

525
00:28:43,480 --> 00:28:46,080
Speaker 3: a straight up jury verdict with a juried finding, and

526
00:28:46,240 --> 00:28:49,240
Speaker 3: appellate courts say that apps them some sort of corruptions,

527
00:28:49,280 --> 00:28:52,080
Speaker 3: some sort of broad committments. They got proper instructions which

528
00:28:52,120 --> 00:28:55,120
Speaker 3: they did that you don't overturn jury verdict. What's interesting

529
00:28:55,120 --> 00:28:57,920
Speaker 3: in that respect because I think it's less the presidential

530
00:28:58,040 --> 00:29:01,200
Speaker 3: value this case that matters going forward extent sort of

531
00:29:01,240 --> 00:29:04,600
Speaker 3: the notions that defendants are no longer going to roll

532
00:29:04,640 --> 00:29:07,640
Speaker 3: over and settled just because of an accusation of copyright

533
00:29:07,720 --> 00:29:10,280
Speaker 3: revengement that Gore vigorously defend, and that this is not

534
00:29:10,360 --> 00:29:12,840
Speaker 3: going to be easy picking, which is how it's been

535
00:29:12,960 --> 00:29:15,080
Speaker 3: viewed for the last five, six, seven years.

536
00:29:15,440 --> 00:29:18,800
Speaker 2: Despite all we've said about the defense here, there are

537
00:29:18,880 --> 00:29:23,200
Speaker 2: two more lawsuits against Sheer and over the same song,

538
00:29:23,520 --> 00:29:27,920
Speaker 2: brought by investment banker and musician David Pullman and structured

539
00:29:28,000 --> 00:29:31,440
Speaker 2: asset Sales, which bought a portion of ed Towns in

540
00:29:31,480 --> 00:29:34,760
Speaker 2: the state, and after the verdict, Pullman said that he

541
00:29:34,840 --> 00:29:36,960
Speaker 2: and his lawyers had learned from the trial, we know

542
00:29:37,040 --> 00:29:42,000
Speaker 2: what to expect. Why another trial about the same song.

543
00:29:42,480 --> 00:29:45,320
Speaker 3: It's a great question, and it's a real problem in

544
00:29:45,360 --> 00:29:50,040
Speaker 3: this field. My understanding of the situation is that a

545
00:29:50,120 --> 00:29:55,440
Speaker 3: third party funder obtained rights the portion of the copyright

546
00:29:55,600 --> 00:29:59,920
Speaker 3: owned by ed Townsend's estate, which gave them independent standing

547
00:30:00,080 --> 00:30:02,480
Speaker 3: to sue for infringement. I think there's going to be

548
00:30:02,480 --> 00:30:05,960
Speaker 3: a real question whether or not the verdict here, which

549
00:30:06,000 --> 00:30:09,080
Speaker 3: was specific verdict of independent creation, is what's known as

550
00:30:09,160 --> 00:30:11,560
Speaker 3: raised ju dakata. In other words, it decides the issue

551
00:30:11,560 --> 00:30:13,959
Speaker 3: once and for all. That motion will have to be

552
00:30:13,960 --> 00:30:16,760
Speaker 3: brought by the defense, and it's a pretty strong motion,

553
00:30:16,960 --> 00:30:20,400
Speaker 3: so they may not get to a trial in that

554
00:30:20,480 --> 00:30:21,320
Speaker 3: second lawsuit.

555
00:30:21,440 --> 00:30:24,760
Speaker 2: Coming up next, I'll continue this conversation with Terry Ross.

556
00:30:24,840 --> 00:30:27,520
Speaker 2: We'll talk about that quick verdict. This is Bloomberg.

557
00:30:30,760 --> 00:30:35,880
Speaker 1: This is Bloomberg Law with June Brusso from Bloomberg Radio.

558
00:30:36,840 --> 00:30:39,240
Speaker 2: After a two week trial, it took a jury only

559
00:30:39,320 --> 00:30:42,000
Speaker 2: two hours to come out with a verdict clearing pop

560
00:30:42,040 --> 00:30:45,960
Speaker 2: star Ed Sheeran of copying Marvin Gay's Let's Get It On.

561
00:30:46,440 --> 00:30:49,680
Speaker 2: I've been talking to intellectual property litigator Terrence Ross of

562
00:30:49,760 --> 00:30:53,240
Speaker 2: Katain Euchen Rosenman, So Terry. As far as the similar

563
00:30:53,480 --> 00:30:58,560
Speaker 2: lawsuits pending against Sharon over the same song brought by

564
00:30:58,720 --> 00:31:03,000
Speaker 2: investment banker and musician David Pullman, Pullman said one of

565
00:31:03,040 --> 00:31:06,400
Speaker 2: his lawsuits would be different because it involved a copyright

566
00:31:06,480 --> 00:31:09,840
Speaker 2: on the recording of Let's Get It On, rather than

567
00:31:09,880 --> 00:31:12,200
Speaker 2: just the sheet music. I know we've discussed it before,

568
00:31:12,280 --> 00:31:15,680
Speaker 2: the sheet music versus the recording, whether that does make

569
00:31:15,720 --> 00:31:16,280
Speaker 2: a difference.

570
00:31:16,920 --> 00:31:21,080
Speaker 3: So it's one of the anomalies of twentieth century US

571
00:31:21,320 --> 00:31:26,000
Speaker 3: music that we did not have copyright protection for recorded

572
00:31:26,120 --> 00:31:31,480
Speaker 3: sound until very late in twenty century nineteen seventy eight. Well, correctly,

573
00:31:31,920 --> 00:31:35,720
Speaker 3: the law that was the copyright law for most twentieth century,

574
00:31:35,880 --> 00:31:39,200
Speaker 3: the Copyright Act of nineteen oh nine, did not allow

575
00:31:39,400 --> 00:31:42,920
Speaker 3: for copyright and recorded sound because it was in its infancy.

576
00:31:43,240 --> 00:31:46,560
Speaker 3: It did allow in copyright lonias that's going well back

577
00:31:46,560 --> 00:31:50,280
Speaker 3: into the nineteenth century, allowed for copyright in sheet music,

578
00:31:50,480 --> 00:31:53,000
Speaker 3: and so at the time that What's Getting On was

579
00:31:53,160 --> 00:31:57,680
Speaker 3: published and recorded, there was only copyright available in sheet music.

580
00:31:58,000 --> 00:32:01,240
Speaker 3: Now there is one sort of variant on that. There

581
00:32:01,280 --> 00:32:06,120
Speaker 3: are states, individual states that have allowed copyright and recorded

582
00:32:06,200 --> 00:32:09,720
Speaker 3: sound earlier than the United States Congress did, and apparently

583
00:32:09,920 --> 00:32:12,120
Speaker 3: they were going to make some sort of claim under

584
00:32:12,440 --> 00:32:14,720
Speaker 3: state law. You remember a couple of years ago the

585
00:32:14,800 --> 00:32:17,640
Speaker 3: old pop group The Turtles, who recorded all of their

586
00:32:17,720 --> 00:32:21,160
Speaker 3: music prior to the Copyright Act of nineteen seventy six

587
00:32:21,240 --> 00:32:24,400
Speaker 3: coming into effect and allowing for copyright recorders, that they

588
00:32:24,400 --> 00:32:26,880
Speaker 3: brought a series of lawsuits across the country under very

589
00:32:26,960 --> 00:32:31,200
Speaker 3: state laws accusing the streaming services of infringing their copyright

590
00:32:31,200 --> 00:32:34,400
Speaker 3: purported copyright, and ultimately settled when they got a favorable

591
00:32:34,440 --> 00:32:37,520
Speaker 3: decision out of one of those states, I think Florida maybe.

592
00:32:37,560 --> 00:32:39,680
Speaker 3: So there's this issue that has always been hanging out

593
00:32:39,760 --> 00:32:42,800
Speaker 3: there and has never been decided by the Supreme Court.

594
00:32:43,040 --> 00:32:45,240
Speaker 3: The Copyright Act, both the nineteen oh nine Act the

595
00:32:45,320 --> 00:32:49,120
Speaker 3: nineteen zventy six Act preempted all other laws. But because

596
00:32:49,120 --> 00:32:52,440
Speaker 3: record it sound wasn't covered by the nineteen oh nine Act,

597
00:32:52,640 --> 00:32:56,960
Speaker 3: it wasn't in theory preemptive of recorded sound copyright because

598
00:32:56,960 --> 00:32:59,040
Speaker 3: there was none. The states preferred to do what they

599
00:32:59,040 --> 00:33:01,680
Speaker 3: wanted to do, and that's what the reference here is

600
00:33:01,720 --> 00:33:03,840
Speaker 3: with respect to this other lawsuit.

601
00:33:03,960 --> 00:33:07,120
Speaker 2: In the sharing case with a computerized version of Let's

602
00:33:07,120 --> 00:33:09,960
Speaker 2: Get It On based on the sheet music. If the

603
00:33:10,000 --> 00:33:13,800
Speaker 2: plaintiffs in the next case can actually play the song,

604
00:33:13,880 --> 00:33:16,680
Speaker 2: do you think that would make a difference, even if

605
00:33:16,680 --> 00:33:19,720
Speaker 2: Sharon testifies as he did here so.

606
00:33:19,760 --> 00:33:22,320
Speaker 3: Clearly made a difference in the Blurred Lines case. I

607
00:33:22,440 --> 00:33:24,080
Speaker 3: was not in the courtroom when that happened. A lot

608
00:33:24,080 --> 00:33:26,680
Speaker 3: of people said that the playing of those two when

609
00:33:26,680 --> 00:33:28,880
Speaker 3: listened to by the jury, seemed to have an impact

610
00:33:28,960 --> 00:33:31,440
Speaker 3: upon the jury, So it is possible that it would

611
00:33:31,480 --> 00:33:33,600
Speaker 3: have that pack here. I've listened to both songs. You

612
00:33:33,640 --> 00:33:35,280
Speaker 3: know a little bit about music, but I'm not some

613
00:33:35,320 --> 00:33:38,440
Speaker 3: sort of musicologist expert, and I'm not sure that it

614
00:33:38,440 --> 00:33:40,760
Speaker 3: would make a difference to me. But you know, every

615
00:33:40,840 --> 00:33:44,400
Speaker 3: jury's different, and I have to wait and see what happens.

616
00:33:44,600 --> 00:33:46,760
Speaker 3: But again, I think it's important to note that the

617
00:33:46,840 --> 00:33:49,840
Speaker 3: jury made a really important factual finding here that this

618
00:33:49,960 --> 00:33:54,000
Speaker 3: was an independent creation that should really my view control.

619
00:33:54,440 --> 00:33:58,080
Speaker 2: The deliberation time here is also not the norm.

620
00:33:58,320 --> 00:34:00,280
Speaker 3: That he already took on. He's like two hours to

621
00:34:00,360 --> 00:34:02,400
Speaker 3: do this. I mean, you can think about this too. Yeah,

622
00:34:02,560 --> 00:34:05,680
Speaker 3: the jury gets back there and it's takes a half

623
00:34:05,720 --> 00:34:08,000
Speaker 3: an hour to get organized, get a cup of coffee, whatever.

624
00:34:08,360 --> 00:34:10,759
Speaker 3: And that's assuming that it's not the lunch breaker ready,

625
00:34:10,760 --> 00:34:13,000
Speaker 3: in which case they kill an hour. Then they spend

626
00:34:13,080 --> 00:34:15,520
Speaker 3: fifteen to twenty minutes arguing about four person because you

627
00:34:15,560 --> 00:34:18,440
Speaker 3: got big four person first, and the bailiff brings in

628
00:34:18,480 --> 00:34:20,640
Speaker 3: the forums and they go, Okay, well, what is it

629
00:34:20,640 --> 00:34:22,440
Speaker 3: that we're supposed to say that sort of thing? You know,

630
00:34:22,520 --> 00:34:25,600
Speaker 3: So that two plus hours is probably only an hour

631
00:34:25,680 --> 00:34:26,960
Speaker 3: of deliberation time.

632
00:34:27,360 --> 00:34:30,839
Speaker 2: It'll be interesting to see if those other cases get

633
00:34:30,880 --> 00:34:35,200
Speaker 2: to trial. Because Ed Sheeran, now it's his second time testifying,

634
00:34:35,440 --> 00:34:38,400
Speaker 2: second time winning. I think he knows what to do now,

635
00:34:38,600 --> 00:34:42,760
Speaker 2: Thanks so much, Terry. That's intellectual property litigator Terrence Ross,

636
00:34:42,880 --> 00:34:44,840
Speaker 2: a partner at Katin Yuchen Rosenman.

637
00:34:45,160 --> 00:34:47,480
Speaker 5: And that's it for this edition of The Bloomberg Law Show.

638
00:34:47,840 --> 00:34:50,160
Speaker 2: Remember you can always get the latest legal news on

639
00:34:50,239 --> 00:34:54,520
Speaker 2: our Bloomberg Law Podcast. You can find them on Apple Podcasts, Spotify,

640
00:34:54,680 --> 00:34:59,719
Speaker 2: and at www dot Bloomberg dot com, slash podcast, Slash Law,

641
00:35:00,160 --> 00:35:02,720
Speaker 2: and remember to tune into The Bloomberg Law Show every

642
00:35:02,760 --> 00:35:06,680
Speaker 2: weeknight at ten pm Wall Street time. I'm June Grosso

643
00:35:06,800 --> 00:35:08,400
Speaker 2: and you're listening to Bloomberg