A guy called me, and I just could not get off the phone with him. He was fishing around too much, and he wanted information that he should pay for. Eventually I said that yeah, I\u2019d be the expert, and that I\u2019d give him an opinion. I\u2019m not an advocate. I have to be impartial and choose. I mean, do I agree with this side? If I do, then fine, they\u2019ll hire me. If I don\u2019t, then they won\u2019t hire me. That\u2019s usually how it works. But I have to be paid for my time. I have to give an honest, critical evaluation. I eventually gave the report once I got paid, and the guy just blew up. He was so furious with me, so angry that he said, \u201cYou\u2019re supposed to do as we pay you to.\u201d I said, \u201cNo, I\u2019m not an advocate. That’s called a lawyer.\u201d So I told them \u201cDon\u2019t file a suit. Here\u2019s why.\u201d And I gave them about 30 songs that had that same chord progression, that were as<\/em> similar<\/em> [as \u201cThinking Out Loud\u201d was to \u201cLet\u2019s Get It On\u201d]. It\u2019s not copyrightable material that it\u2019s based on; it\u2019s pitches 1, 3, 4, and 5. You\u2019re just using the major scale, no extra notes, and that predates Marvin Gaye, and it goes way back. I mean, the Bee-Gees had a hit song with that chord progression: \u201cI Started a Joke.\u201d A lot of people did. I have over 60. I would think no. It would depend on what the defendants did. But there\u2019s a lot of evidence, in my case, over 60 songs to show. This is common stuff and other people arrive at it. So I think even if they just based it on hearing the song, because that\u2019s all I was told was to do, base it on hearing: here\u2019s this recording. They didn\u2019t say to me, \u201cJust analyze the sheet music.\u201d <\/p>\n\n\n\n They were not supposed to listen there either, because sound recordings are not protected by copyright in song. I\u2019ve heard different things. What I saw was they weren\u2019t supposed to hear it, but then the judge let them hear a version. I got involved in \u201cGot to Give it Up\u201d and \u201cBlurred Lines\u201d at the appeal. I don\u2019t know if I told you that story or not.<\/p>\n\n\n\n I think it did (with \u201cGot to Give It Up\u201d). But what\u2019s way worse is that the jury sees a lot of stuff. They see depositions and Robin Thicke\u2019s deposition, at different times, he said different things. I was on a panel at the Beverly Hills Bar with the great lawyer, Howard King, who was the attorney in that. He\u2019s a famous guy. He\u2019s been Metallica\u2019s lawyer. He\u2019s everybody’s lawyer. Anyway, the four of us spoke, and I was the third one. Then fourth was going to be Howard. And the woman who starts out by asking the question that gets us talking, she said, \u201cHoward, what the hell went wrong? How did you lose that case?\u201d And his answer was hysterical. He said, \u201cWell, you don\u2019t lie to Oprah.\u201d So what had happened was Oprah had asked Robin Thicke a question about influence and Marvin Gaye, and under oath, he said something the opposite. So the jury, I think, saw that. <\/p>\n\n\n\n LEARN MORE ABOUT HOW MUSIC COPYRIGHT WORKS WITH E. MICHAEL HARRINGTON<\/a><\/em><\/strong><\/p>\n\n\n\n They saw Pharrell Williams looking awful at his deposition. It\u2019s on YouTube<\/a>. Pharrell\u2019s dodging questions. And he had the best lawyer. Howard King\u2019s the best. And Howard\u2019s like, \u201cWe need to take a break. We need to take a break.\u201d He would let this stuff get under his skin. I mean, what a person in his position should just realize is that, \u201cLook, I\u2019m a successful guy, and no, I don\u2019t read music.\u201d I think that\u2019s the main thing. And he was trying to do \u201cI know this.\u201d The lawyer was asking Pharrell Williams some really good questions, some probing questions, the right questions to throw him off. Because one point of a deposition is to just go ahead and get under the skin of people, make them say things they don\u2019t want to say. So, that is what they succeeded in doing. I think that’s the main thing to me that went wrong with that trial, and the whole outcome was awful. Yes. It helps correct it. It\u2019s the third victory since. Led Zeppelin went the right way eventually and so did the Katy Perry one. And this was correct right from the start. I think it\u2019s finally looking better. Not to say that another thing can\u2019t happen, because these people not only wanted to sue Ed Sheeran for that song. <\/p>\n\n\n\n Here\u2019s the really funny thing: So say Marvin Gaye is song A and Marvin Gaye, according to this guy contacting me, wants to sue songwriter B, Ed Sheeran. He says, \u201cOh, B is a copy of A.\u201d And he wanted to sue Thomas Rhett as well, saying that Thomas Rhett\u2019s song is an exact copy as well. So if B copied A and C copied A, and B and C are nowhere near alike, where\u2019s their logic there? So I think that this guy is someone who only views this as \u201cI can make money.\u201d It\u2019s not a musical cause behind this person. It\u2019s a money person. It\u2019s not the songwriter, it\u2019s not the lawyer.<\/p>\n\n\n\n Not if they didn\u2019t sue, if they didn\u2019t take part in that, they wouldn\u2019t.<\/p>\n\n\n\n I think far more often, it\u2019s plaintiffs asking. There are so many. I mean, I\u2019ll give you an example. My first case ever was against Billy Ray Cyrus. It was the big hit right after \u201cAchy Breaky Heart.\u201d So suddenly I gave my report and I was on CNN, and I\u2019m on all these shows. I didn\u2019t know anything about copyright! Nothing. And there I was, the expert witness in a case, which is what initially you\u2019re not born with … You might be born with some musical ability, but you\u2019re not born with copyright law ability. So as a 38-year-old really good musician, I wasn\u2019t that. But I got involved in that one and I had 10 different people contact me to say, \u201c\u2018Achy Breaky Heart\u2019 stole my song!\u201d And all 10, I said \u201cno\u201d to. And even then, not knowing much about copyright law, I knew enough to say \u201cno.\u201d I knew musically, they better have a bunch of things in common.\u00a0<\/p>\n\n\n\n Most of the time though, I think it\u2019s people who don\u2019t understand copyright law. I think that\u2019s 99 percent of the public. I think also maybe if they submitted a copy of the music to someone, like if you met a security guard at Taylor Swift\u2019s concert and gave a demo to that security guard who was just hired, and asked that person to get it to Taylor Swift, vs. you gave it to her sound person, vs. you gave it to her a guitar tech. So first you have to show access. So sometimes people think, \u201cwell, there must have been access, because a neighbor of my cousin\u2019s brother who lives on whatever.\u201d It\u2019s not tough to see that. And a lot of people since they distributed their music or they posted it on YouTube and they can say, \u201cWell, they had the chance to hear it, because I posted my song a year earlier or five years or three months earlier\u201d or something. So, a lot of people think that someone famous had the time to scour the internet and hear their music or something, and then steal it. What I\u2019m saying is that there are more potential plaintiffs out there.<\/p>\n\n\n\n So what they did was they contacted the law firm in New York that released \u201cHappy Birthday\u201d and \u201cWe Shall Overcome\u201d into the public domain. I work with those guys and I\u2019m their first person they would go to<\/a>. So they called me and got in touch with me about this. And I started smiling. I said, \u201cI think I might know something about this.\u201d So we talked. We had a good conversation about it. They said, \u201cEven in light of \u2018Blurred Lines,\u2019 does that change anything for me and the \u2018Blurred Lines\u2019 decision?\u201d I said, \u201cNo, this is a bad case and here\u2019s why.\u201d We might have had another conversation, because we like each other as people too. … So a month or so later, maybe two months, we got in touch again and they said, \u201cOh yeah, we turned those people down. We got to listening to it based on what you said.\u201d I was pretty thorough with them. So in other words, they would\u2019ve done it had I said yeah. So that was the second time I was being contacted by them, but this time through great lawyers. So then those great lawyers were not involved. So I know certifiably, I got the proof that I was their first expert they went to, and these lawyers were their first or second that they went to, that I know that they would like to have had those lawyers because they\u2019re so good. I think both sides would benefit. And then suddenly the press happens. Ed Sheeran\u2019s going to be forever linked with \u201cLet\u2019s Get it On\u201d for being falsely accused, but it\u2019s a federal trial. It\u2019s a big, big deal. People don\u2019t know that sometimes. This isn\u2019t like getting divorced and you\u2019ve got a court you have to go in. That\u2019s not a federal, your divorce, but \u201cthis song\u201d vs. \u201cthat song\u201d is federal.<\/p>\n\n\n\n I think we have access to so many things. And even if you do almost any song, if I hear a song, a popular music expression, I\u2019m going to find something in it that has its origin elsewhere. It\u2019s like how you and I have known each other for years and we\u2019ve never said original words to each other. We don\u2019t make up words on the spot, which is good, because I wouldn\u2019t understand those made-up words. We\u2019re going to have clich\u00e9s and we\u2019re going to have some things that we repeat. So yeah, if you want to base it on another song, it depends on how original it is. If you take the four chords, C major, A minor, E flat major to C minor, I know of one of those in the world. It\u2019s the first four chords of \u201cThe Warmth of the Sun\u201d by the Beach Boys. I have never ever heard that anywhere else. But if you take a common little phrase that cannot be protected by copyright, it will eventually become an original expression if you say it enough. Like Bill Withers\u2019 \u201cAin\u2019t No Sunshine.\u201d He gets to this point, \u201cAnd I know, I know, I know,\u201d and does it 26 times in a row. So if you did it 19 times in a row, I\u2019d say that’s a problem, but if you do it eight times, it\u2019s not a problem in my opinion. But somewhere between eight and 19, it might be you\u2019ve copied him.<\/p>\n\n\n\n Dr. E. Michael Harrington is an instructor of Music Business Law<\/a><\/em> and Music Licensing<\/a><\/em> at Berklee Online.<\/strong> Forensic Musicologist and Berklee Online instructor E. Michael Harrington\u2014a witness in the \u201cBlurred Lines\u201d case\u2014on why he wouldn\u2019t testify that Ed Sheeran violated \u201cLet\u2019s Get It On\u201d copyright. … He was asked twice!<\/p>\n","protected":false},"author":13,"featured_media":19536,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[1,9564,35,9568,9560],"tags":[470,8641,9171,6511],"class_list":["post-19532","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-articles","category-features-articles","category-instructor-profiles","category-music-business-articles","category-spotlight","tag-e-michael-harrington","tag-ed-sheeran","tag-ed-townsend","tag-marvin-gaye"],"acf":[],"yoast_head":"\n
<\/p>\n\n\n\nWhen the verdict came out I read that as a quirk of copyright law, the jury couldn\u2019t actually listen to the actual recording of \u201cLet\u2019s Get It On.\u201d They had to rely on sheet music and robots singing! I didn\u2019t know that before! Do you think if they were allowed to listen to the actual recording side-by-side with \u201cThinking Out Loud,\u201d that there would have been a higher probability that their verdict would have been different?<\/strong><\/h2>\n\n\n\n
Did the jury listen to the recording of Marvin Gaye\u2019s \u201cGot to Give it Up\u201d in the \u201cBlurred Lines\u201d trial?<\/strong><\/h2>\n\n\n\n
Oh yeah, I know that story! It\u2019s one of my favorites of yours!<\/a><\/strong> So if a jury hears the song, do you think that taints their perception?<\/strong><\/h2>\n\n\n\n
<\/p>\n\n\n\nI\u2019ve heard you say in some of the Berklee Online course material about how the \u201cBlurred Lines\u201d verdict basically set a dangerous precedent for creatives. They had to be on guard when they were paying homage, and worry if they were going to get nabbed unjustly for plagiarism. Now, do you think this verdict corrects that?<\/strong><\/h2>\n\n\n\n
So the estate of Ed Townsend filed the suit. Now, if they had won, would the estate of Marvin Gaye also have received money, since Marvin Gaye was also a co-writer?<\/strong><\/h2>\n\n\n\n
There was a really good quote that you had said, that you say yes to almost \u201cevery ethical opportunity\u201d that comes your way. I think that\u2019s a good way of putting it. How often would you say you are for the plaintiff, and how often are you for the defendant? How often are you called to say, \u201cNope, this doesn\u2019t sound alike,” vs. how much you\u2019re called to say, \u201cYes, this does sound alike\u201d<\/strong><\/h2>\n\n\n\n
Okay, so now tell me about the second time the plaintiffs approached you for this case between \u201cLet\u2019s Get It On\u201d and \u201cThinking Out Loud.\u201d<\/strong><\/h2>\n\n\n\n
<\/p>\n\n\n\nIf I go on Spotify and I type, \u201cLet\u2019s Get it On,\u201d the second thing that comes up as a result is \u201cThinking Out Loud,\u201d which is funny. It\u2019s tough to ask if you think \u201cLet\u2019s Get it On\u201d benefited from this trial in some way because it\u2019s such a classic anyway, but in less popular songs, they probably receive some sort of benefit from it.<\/strong><\/h2>\n\n\n\n
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<\/figure>\n\n\n\nTo play devil\u2019s advocate for a moment: You say that this latest verdict is good for songwriters, in the sense that they won\u2019t necessarily have to fear being slapped with a lawsuit. But what does this say about originality? Is it dangerous that people will be more likely to create derivative art, because they can? I read an article<\/a> recently about how song publishers are now representing song catalogs the way they used to represent artists and pitching the material to other artists, like \u201cHey, will you sample my artist\u2019s song that\u2019s in my catalog?\u201d and trying to make deals that way. <\/strong><\/h2>\n\n\n\n
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