To say that the music industry was glued to reports coming out of the Ed Sheeran copyright infringement trial, and particularly the verdict, would be an understatement, coming as it did after the “Blurred Lines” case had a very different outcome. Ilene Farkas, the lead attorney from Pryor Cashman, which handled Sheeran’s defense, says the two trials weren’t exactly comparable, but knew well that many songwriters who worry they could end up in the same shoes as Sheeran were counting on a victory for the singer-songwriter to establish some fresh precedent for having future copyright claims facing a higher burden of proof.
Farkas spoke with Variety the day after the verdict came in favoring Sheeran over the plantiffs, heirs of Marvin Gaye’s “Let’s Get It On” co-writer, Ed Townsend.
After seven or eight years of this moving its way slowly through the legal system, were you always perceiving this as a grand slam when the time finally came, or was there more unease about it than that, given that many people who would be on your side in this one think juries have gotten it wrong in the past?
When you really look at what’s actually at issue in this case, we were talking about chord progressions and the anticipation of the chord progressions. And to the extent that their changing theories included pitches or melodies here and there, we were always confident that if you applied those facts to copyright law, that we should absolutely prevail. But different judges have different levels of familiarity and comfort with music. And of course, as you pointed out, when you have a jury involved, you just never know how those six people are going to view the evidence and understand the musical theories that are being presented to them. So we all know that you never know with a jury. We were certainly confident in our position.
It’s not always easy to intuit what jurors are thinking during the course of a trial, but did you pick up any sense of how they were leaning or whether there were any particular bits of testimony or arguments you were making that you could feel, OK, this is landing with this jury?
I have to give props to this jury, because I felt they were, as a whole, really stone-faced throughout this entire trial. When I wasn’t up there questioning a witness, I would really try to get a sense from them one way or another. So I wish I could say there was that moment. But they were really impressively poker-faced throughout the trial.
People have compared this with the “Blurred Lines” case. Here, you had an artist who was much more active in really participating in the defense, in court. The plantiffs’ lawyer cautioned the jury toward the end of the trial that they should not be “charmed” by him, which obviouly would not be why you think you prevailed. But was there anything you think was particularly successful in having him on the stand?
Every copyright case is different because you’re dealing with the songs that you’re dealing with. So just on a very fundamental level, just on the songs themselves, this was a very different case than “Blurred Lines.” There’s a lot of differences between this case and “Blurred Lines,” and I’m sure you and I could probably spend a few hours talking about all those differences. And I don’t think in any way they’re limited to the artists at issue.
I think that putting Ed on the stand was something that was very important to Ed. He has been accused of doing something that he did not do for seven-plus years now. And he felt it very important, as did we, for him to tell his story and to explain who his influences were, how he and Amy wrote this beautiful song, and to also respond to some of the evidence and theories that the plaintiffs were trying to put forward in this case. So it was important to us and important to Ed for the court and the jury to see who he was as an artist, because he was being accused of some pretty serious things that he did not do. And so it was important for us and Ed for the jury to see that he’s a real artist; he’s a prolific artist; he is extremely talented — and to show them a sense of how he came up with this song with Amy (Wadge) and how it’s very different from the manipulated versions of the melodies that the plaintiffs’ expert tried to put forward. You know, these were all important things to demonstrate, and there’s no one better to demonstrate it than Ed himself.
The plaintiffs had their musicologist and you had yours. A lot of music experts would say that it’s unfair to have this come down to one versus another for a jury that may not have an expert comprehension of the technical aspects of music.
Well, look, it is a lot to ask of a jury — right? — to understand musical theory. They had a big job to do there. Our expert is world-renowned for a reason. His integrity and his capabilities are really exceptional. Any musicologist should be able to analyze what was a relatively straightforward musical elements at issue, and explain it to the jury. We believe our expert did that quite methodically and carefully and accurately. I’m not going to say more about the plaintiffs’ expert than I’ve said during the trial and that I think my cross examination demonstrated. But clearly the jury took our expert’s analysis over the plaintiffs’.
You said the jury was stone-faced. Court reportage made it sound like there might have been a few light-hearted moments, though… Did you feel there were any, given the seriousness of what was at stake?
What you saw is what you get with Ed, the way he went on the stand. I’ve gotten to know him quite well over the last few weeks, and you don’t need me to tell you that he’s an incredibly talented songwriter and artist, but he’s just a phenomenal human being, who took on this challenge at great sacrifice to stand up for songwriters. He felt that this was something that he needed to do, and I think that in and of itself says a lot. And I think he was able to have some lighthearted moments on the stand as well. I’d like to think that that some people enjoyed watching the “Access of Awesome” video that we played for the jury to demonstrate how, when songs have similar core progressions, you can play all sorts of melodies over it, over and over and over again. So I’d like to think that there were certainly some lighter-hearted moments. It’s hard to know what resonates with people.
How would you characterize his attitude, on the stand, behind the scenes and now that it’s over? He sounded grateful in his statement afterward, but also quite frustrated over having to miss his grandmother’s funeral to testify this week and, just overall, that any of it happened in the first place.
I don’t want to go too far in speaking for Ed. I think his statement said it all. He is certainly thrilled about the decision. He feels vindicated, but he feels not only vindicated for himself, but for all songwriters. There have been many, many, many songwriters who reached out to him during this trial in support of what he was doing, and so he felt a tremendous obligation. That’s a big weight on your shoulders. There were dozens and dozens of strangers who reached out to me, just songwriters and professors of musicology, and just consumers of music who all were in support of Ed and the impact that this case was going to have potentially on songwriting. So I don’t know how Ed’s feeling today. I think he’s got a lot going on. [Sheeran’s new album came out Friday.] But I know it was a combination of really being thrilled that the jury got it right and, as he said in his statement, that this has to stop. I think he meant those words. He’s not gonna say words he doesn’t mean.
He made the statement, “I will not be a piggy bank.” Do you agree that it’s important to take some of these cases to trial and not settle, even though that’s the easiest way out a lot of the time, and more such cases have ended in settlements than not?
Yeah. But it’s up to that artist and that defendant to do so. There’s a time and a place for everything, right? And sometimes, as you point out, things can get resolved for business reasons. Sometimes that happens, and nobody’s happy about it. These cases can be distracting and quite expensive. If they take these artists and songwriters and rip them out of the songwriting sessions and the studios where they really should be to have to focus on legal battles, it’s not where any of us should want them to be. We should all want them in the studio creating great music. So I give tremendous kudos to Ed for taking this one on. And hopefully, this decision will minimize the number of times that artists in the future have to ask themselves that question: Do I really want to take this to trial? That hopefully will give us more and more grounds to get things dismissed earlier on.
Will this have a discouraging effect on these kind of lawsuits? If they have to pay legal fees, there’s some penalty for them. But other lawyers have said there will never be a shortage of people wanting to bring these cases. What effect do you see it having?
I guess my easy answer to that would be: Ask me in a year. I would like to think that this will send a clear message to would-be claimants that no one can own basic music elements. No one can own chord progressions or an anticipation or a few commonplace lyrics or pitch sequences. And that it will hopefully at least give a certain percentage of would-be claimants significant pause before they pursue a claim that should never be pursued.
The so-called “smoking gun” from the plaintiffs’ attorneys — which your side said in the closing argument was “shooting blanks” — was the recorded mashup of Sheeran doing “Thinking Out Loud” with “Let’s Get It On” in concert. It’s easy for anyone who’s seen a lot of concerts over the years to think of similar instances where someone did something similar. Elvis Costello, for instance, has done it a lot, and last year he played the opening of Bob Dylan’s museum, where he incorporated “Subterranean Homesick Blues” into “Pump It Up,” to show how that kind of talking-blues influenced him. It’s not like Dylan is likely to suddenly sue him for that, when they’re friends or acquaintances…
Among other reasons.
But people were feeling that it would be scary for music fans if nothing like that could ever happen again, or at least not without an extremely courageous artist. Did you worry that having the medley played in court would have an effect on the jury? [Sheeran’s team asked to have the recording excluded, but the judge eventually allowed it.]
I mean, we always had the same reaction that you just explained, that this is simply simply one artist playing two songs have a somewhat similar core progression. There’s an endless and endless and endless amount of music that can be mashed up or interpolated, — or whatever phrase you want to use; I think we all tend to use the word mashup. And it means nothing. But you obviously have to be prepared to address the evidence that the other side wants to put in, which is why we had Ed go through a number of his other mashups to show how, just like all other artists, he mashes up songs — some stuff that he’s influenced by, or just because he likes the way it sounds. He’s an entertainer. People want to be entertained. And the notion that mashing up two songs is now going to subject someone to a claim of copying or infringement after the fact is absurd.
You were representing Ed, not the entire music business as a whole, but you had to feel the rooting interest that was out there from so many writers and people in the music industry. Did you have that sense that people were looking on to see how this would turn out as a part of history too, or was it just another case in the docket?
Well, it certainly occurred to me. You know, look, I’ve been handling these types of cases for, I hate to divulge it, but three decades now. And so I knew how obviously first and foremost we were focusing on Ed and this particular case, but we knew that, given that these cases do rarely go to trial, and given the amount of attention that this case would undoubtedly get, we knew that we were fighting a broader fight in some ways. And that really I think even fueled our motivation and inspiration just that much more.