Pryor Cashman Partners Ilene Farkas (co-chair of the Music Group) and Donald Zakarin (co-chair of theLitigation Group)spoke with the Am Law Litigation Daily for a Q+A about their successful representation of star singer-songwriter Ed Sheeran in his landmark copyright trial.
In "Unblurred Lines: Thinking Out Loud With Ed Sheeran's Copyright Trial Lawyers at Pryor Cashman," Ilene and Don discuss their approach to a significant victory that "did a lot to ease the nerves of modern music makers."
Don outlined the Pryor Cashman team's approach to presenting Sheeran's case in court:
I believe that, like any case, it's a mosaic of evidence and all of it is important. What you try to present is a complete story, a complete picture. The claimed similarities are either unprotectable, commonplace or, in fact, are different. And secondly, connected to that, what is the creative process that went into the creation of this particular song? Both of them dovetail. They're both important. Doing one without the other would be an incomplete picture.
What was very important to us from a client perspective, and from an industry perspective, was to get, if we could, a finding of independent creation. It was important, I think, to Ed because if you won because they didn't infringe, because these similarities were simply commonplace or there was not enough for them to make out the selection and arrangement claim-those are defenses and appropriate defenses. But they are not, "No, we didn't copy anything. We didn't rely upon this. It wasn't even in our minds. It was the furthest thing from our minds. We independently created our song." Happily, that's what we obtained. And it's not very often that you obtain that.
Ilene noted that Sheeran's win was also a victory for songwriters across the music industry who might have been fearful of being the targets of similar copyright infringement claims:
We hope that it means that would-be claimants take a moment and really think about what it is they are claiming is similar between the two songs-whether or not those claimed similarities are not only something that are protectable expression, but something that they actually can confidently say they own. I think that is a real flaw in a lot of these claims is that people only look to what they think is similar between two pieces of music. They get experts who only look at claimed similarities between two songs, but don't take the critical, necessary extra step to say, "Well, so what?"
We all know lots of music shares similarities. They don't call them "basic musical building blocks" for nothing. And too often, claimants don't and their experts don't take the necessary step of saying, "Okay, well, I think these things are similar between these two songs, but can I credibly say that I'm the one who created these things? Can I credibly say that I'm the first to ever come up with this combination of unprotectable elements?" And I would like to think that if at least a certain percentage of those would-be claimants ask themselves that question and ask their so-called experts that question, that perhaps we'll see a drop in frivolous claims.
Read the full Q+A using the link below (subscription may be required).
Am Law Litigation Daily
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