This is Bloomberg Law with June Brusso from Bloomberg Radio. Eight years ago, at a concert in Zurich, Ed Shearon sang that mashup of his Grammy winning song Thinking Out Loud and Marvin Gaye's classic Let's Get It On Now. Sharon is in a Manhattan federal courtroom fighting claims that he stole elements from Gay's song, and the pop star defended himself with his guitar playing and singing for the jury to prove that Thinking out Loud was his own.
My guest is intellectual property litigator Terrence Ross a partner Katin Yuchen Rosenman Terry. What do the plaintiffs, the airs of Gays co writer Ed Townsend have to prove?
So the plane of has to show that there was substantial similarity between Ed Sheeran's song Thinking out Loud and the sheet music for the Marvin Gay Ed Townsend written song Let's Get It On Now. This is a very important distinction. Let's Get It On is from nineteen seventy three.
The Copyright Act of nineteen seventy six obviously had not yet been enacted, and so Let's Get It On is under the old copyright regime, and under the nineteen oh nine Act, there is no copyright in recorded music or was recorded sound in general, And so what a songwriter had to do in those days is prepare sheet music. Everybody hopefully remembers that from taking piano in elementary school. But they had to prepare sheet music and submit that to the copyright office. And so the copyright that was
issued was strictly limited to the sheet music. And the sheet music is just a series of notes. It does not have the full impact of recorded sound with beats and rhythms. And the jury has to decide whether that relatively sparse sheet music was infringed, meaning whether or not at Sharon's song, thinking out Loud was substantially similar to
that sheet music. And that is a big ass. The jury is not, as a matter of law, allowed to compare the recorded song Let's get it on with the recorded song by it Sheeran, Thinking out Loud not allowed to do that. That would be improper. They're going to get a very careful instruction from the judge at the end of the case not to do that. The judge will give them a further instruction that says, all you
get to do is compare the sheet music. What typically happens in these cases involving songs with older copyright, say, is that someone comes in with a little keyboard and they play strictly those notes that are on the sheet music. And take my word for it is somebody who's been
in the courtroom when this has happened. The effect of hearing a handful of notes played on a keyboard is so different from hearing the recorded music that it becomes very hard for a jury that then jump to the conclusion that that's the same as the recorded music.
The plaintiffs are claiming that Seron deliberately and intentionally copied gay Song, so not accidentally. Plaintiff's attorney Benjamin Crump said that Seron quote recognized the magic of gay song, and he had decided to capture a bit of that magic for his own benefit. Isn't that a big ask for the jury? When Saron said he came up with the song after the death of his grandfather.
It's substantially hyperbole. And the mistake that some trials make in buying into their own hyperbole is that they end up setting a very high bar of proof. Because the jury hears that statement, they think, oh, in order to find for the plaintiff here, I have to find that Ed Shard set out to intentionally deliberately copy this specific song, which isn't necessarily the law here, but they now think that thanks to the plaintiff's opening.
Here's what Sharon said last year after winning an infringement trial in Britain over another one of his hits, Shape of You.
There's only so many nights and very few chords used in pop music. Coincidence is bound to happen if sixty thousand songs are being released every day on Spotify, there's twenty two million songs a year, and there's only twelve nights that are available.
Sharon's defense seem to be arguing something like that. In this case, what do they have to prove?
The core of the copyright infringement argument by the plaintiff is that both songs have a or chord progression that it ends now the second chord in that for chord progression is slightly different. The argument that the Senate it sharing's attorneys have to make is that those chord progressions are very limited, and we all know if there's only eight notes in the octave scale, right, But even when
you combine those notes into chords. For different genres of music, there are limits on the number of chord progressions available to actually make it sound like what you want it sound like. So in the pop music industry there's actually very few chord progressions that are available. It's a little bit different from blues music, where you have a slightly larger range of chord progressions available. But again it's finite.
And the argument that has been made over the years is that where you have this finite group of notes and finite group of chord progressions, you can't allow any song or group of songs, to an effect monopolize them by having gotten there first with their selection in notes chord progressions. That's not what the Copyright Act is supposed to be about. It's supposed to protect unique expression and not merely the use of as people often said, the building blocks of a pop song. And so I hope
that explains it. That is the fundamental battle that has been going on, not only in this courtroom, but in numerous courtrooms for the last fifteen to twenty years.
On Thursday, Sharon took the stand in his defense case, and from all accounts, did very well.
He talked through the process by which he created Thinking out Loud, the song of issue, and talked about it in incredible detail. And this is what was important to me. He remembered exactly what he was doing at the time. His collaborator, Amy Wadge, was in his apartment. He goes, I'm going to go take a shower to a shower, came out. She was messing with some pop chords and putting them in different arrangement, and he goes, hey, I think he got something there, and they started tinkering with it.
And he remembers the process so distinctly that it lends credibility to his assertion that he didn't borrow this from any other artist. Second thing that was really interested about his testimony was his comment that he works with Amy Wigs all the time. They're just really good at pulling up music quickly. He said that since they were both in New York City for this trial over the last four days, did written ten songs back in the hotel room,
I mean, which is just phenomenal. But the point that the defense was trying to make is this guy's just really talented and creative. He's a prolific singer, songwriter who doesn't need to steal from anybody else. And I thought that was very impactful.
So when did Sharon whip out his guitar and start singing?
His own lawyers started asking him about the testimony during the plaintiff's case from their expert, the University of Vermont professor, who made the argument that both songs have a four chord progression, although there is one difference in the four chord ascending progression, specifically in the second chord, that it's a variant chord, that it's easily substituted and is not
therefore meaningful. Ed Shearon's own lawyer asked him about this, and he said, essentially, God doesn't know what he's talking about. And he whipped out his guitar, which had been pre positioned behind the witness stand before anybody'd come into the courtroom. Nobody would know it was there. And once somebody like Ed Sharon has a guitar in his hand, the planet's attorney can get up an objectives much as he wants, but that jury is going to resent it if he's
not allowed to play. And so he started playing the song, and he played it two different ways. He played it with the chord progression of the actual song and then the chord progression from the Marvin Gay songs. It's in the very opening of the entire song, and the University of Vermont professor for the planet admit it that the rest of the song is different. So they're only now fighting over this four chord ascending progression. And he says, says,
see how that doesn't work. It doesn't substitute in the way the University of Vermont professor was insisting he does. He says, do you hear how that works differently, And a number of the jurors started nodding their head, you know, as if in agreement. And that is a very telling And if there had been a settlement offer on the table from the defense, I would immediately playing if Overnight
accepted that. But it just tells you, we've talked about this before, how challenging it is to bring a case against these mega celebrities like Katy Perry, Led Zeppelin, Taylor Swift. We're here at Sharon as they come in the court room, and even if a jur didn't really know him, wasn't familiar, they see the hoopla that's going on at the courthouse. They know he's a big celebrity because of all the hoopla that they see going on, and then he plays
guitar and things to them. I mean, can you imagine going back into the jury room that and voting against this guy who's got a sort of really cute levea will look.
To start with, they're suing for one hundred million dollars. That number seems out of this.
World and I'm dying to see how they're going to prove that up. That's another unfortunate trend in litigation these days to just attach some enormous number at the end end of the lawsuit, you set out everything that you're complaining of, and then at the end of lawsuit in the papers you say, accordingly, play Off seeks one hundred million dollars in damages plus attorneys fees and costs. It's
just unfortunate. It's done to get media attention. The media will go, well, this must be an important lawsuit is there's one hundred million dollars of the line. The reality is that even if there's a copyright infringement found, the best they can hope for is some percentage of the royalties that mister Shearon has enjoyed from the copyright that he had in the song, and I don't know what that number would be. It may still be a large
number in the sense that it's seven figures. If you recall the Blurred Lines case of a couple of years ago, they similarly asked for a large number and ended up receiving five point four million dollars. I believe was the final round five million dollars, which was by orders of magnitude smaller than what they'd been asking for.
We've talked about since Blurred Lines really about the increasingly litigious music industry, and I know this draw was put off until the Ninth Circuit came out with the Stairway to Heaven decision. Are lawyers watching this case not only because of Ed Sheeran, but because of what law may be.
Made, So copyright lawyers, music lawyers, and academics they're following this case very closely. There has been over the last decade or so a trend in copyright infringement of songs that really started with the Blurred Lines case. In that case, some interesting decisions by the District court and a curious jury decision ended up in a finding that Rob Thick
and Farroh had infringed Marvin Gaye's song. It went up on appeal on the Ninth Circuit and the appel Court struggled and really came up with a disjointed opinion that at the end of the day affirmed the jury award, which set off a feeding frenzy amongst PLAINUS lawyers bringing
lawsuits such as this one against Ed Sharon. A couple of years later, there was, as part of that feeding frenzy, a lawsuit brought against the group Led Zeppelin over their Stairway to Heaven, making many of the same sort of allegations as in the Blurred Lines case and premise done
the same sort of legal argument. That case went up to the Ninth Circuit in front of a different panel of three judges who seem to understand or at least have better understanding of copyright law and the field of music, and being more cohesive in their views, came out with a very important decision in which they said that there are some elements in music that are so commonplace that
they need to be virtually identical to constitute infringement. So in general, copyright infringement can be proved by just substantial similarity, not identical works. Just substantial similarity is good enough. So here the Ninth Circuit in a landmark case saying that, well, not always in the field of music. We're not going to give outnopolies over notes or chord progressions or riffs.
Where were going to say that these are building blocks of all song And in order further to be a copyright infringement, you're going to have to have virtually identical treatment. So the substantial similarity rubric went out the door. Judge Stanton, I mean this case was filed way back in twenty seventeen.
Judge Stanton at some point had it called his attention that this led Zeppelin case was up on a deal to the Ninth Circuit, and he deliberately postponed the trial in the ed sharing lawsuit to see what the Ninth Circuit would do, and he said this, I want to see how they handle it because it will be informative here. And then the pandemic hit and as you know, Ed Shearing literally could not get across the Atlantic. He was quarantined in Britain for the longest time. And that's why
it's taken six years to get this to trial. There was that delay for the led Zeppelin case and the pandemic or finally a trial, and Judge Stanton said that that led Zeppelin case was very informative in how he we're going to handle this case. So now we come to the current time and the question that lawyers and academics and musicologists are following is this is he going
to in this instance hold the plaintiff Townsend's airs. He's going to hold them to that standard set that by the Ninth Circuit that there has to be virtual identity of the taken elements of the song, and we're gonna have to see. The general wisdom out there in my field is that we've seen the pendulum swing, that it swung way far one way during the board Line's case, and it's stuf swung back with the led Zeppelin decision.
And the question is is that pendulum going announce swing back towards blurred line someplace built or stay out there where the led Zeppelin decision has it. And that's why this is the important case. It's the first real opportunity to see what that led Zeppelin decision means in practical terms of a real trial.
Sharon took the stand last April involving another one of his hits, the twenty seventeen Shape of You, and a judge ruled in his favor and award him more than one point one million dollars. He settled a lawsuit over another one of his hits for twenty million in twenty seventeen over the hit photograph. He's being sued a lot.
Several things that are going on here. First, planes don't sue over copyright infringement against someone who's not successful artist, writer, filmmaker. There's no money to be had. So the fact that you're as a successful singer songwriter zed Sharan sets you up as a target in the first place. The second thing that's going on here is that early in his career there were a couple charges of copyright infringement alleged him, and in retrospect he arguably should not have settled them.
You start settling them, you go to the top of the target list. You may be on the target list for being successful and adding a lot of money, but you go to the top of that target list when it becomes known in the plaintiff community that you're not going to fight, you're going to settle and pay out, because that's what they want. The planiffs don't want a trial, they don't want a lengthy legal dispute them. They just
want to payout. And if you're that kind of artist who's going to settle over and over again, you're going to go to the top of the target list. The third thing that's going on, though, is just the nature of the sort of pop music that Ed Sheeran writes and performs. As I said before, within his sort of wing of the pop music genre, there's a limit, a very finite limit on the number of chord progressions you
can use. And you could probably take apart almost any current top twenty pop chart song and find chord progressions used by a recording artist twenty years ago if you wanted to. And so it's not any one thing they're not picking on Ed Sheeran, and I don't think you can draw the conclusion that somehow he's a copyright infringer from all this. It's just a set of circumstances that
have landed him into multiple lawsuits. And he has finally apparently taken the advice of some of his smarter and singli ais and started to fight these so as you said last year, he bought the shape of you copyright infringe of my charges and one now I will well ms Ice here. That lawsuit was brought in the United Kingdom. It was brought under the UK's copyright law, which does have some differences from American copyright law, and it was
decided by a judge. And the fact that there were attorney's fees awarded, it was not a reflection on the quality or the merits of the planet's lawsuit. In Britain, unlike the United States, if you lose, you pay the other guy's attorney's fees no matter what. Even if you had the best orned suit in the world and you just happen to lose on some technicality, you're stuck with the other guy's legal fees.
Thanks so much, Terry. That's intellectual property litigator Terrence Ross