By Dr. Ken Broda-Bahm:
After threatening that me might end his musical career if the jury went the other way, popular musician Ed Sheeran can now continue his line of work. According to a federal jury in New York earlier this month, Sheeran’s 2014 song “Thinking Out Loud” did not copy the musical structure of Marvin Gaye’s 1973 classic, “Let’s Get It On.” As one of the most highly-watched artistic copyright cases in many years, the trial was broadly seen as setting the course for other cases. Sheeran, however, succeeded in convincing the jury that his song was made up of “common building blocks” that are present in a variety of other songs. “We have spent the last eight years talking about two songs with dramatically different lyrics, melodies and four chords which are also different and used by songwriters every day, all over the world,” Mr. Sheeran explained to the jury. “These chords are common building blocks which were used to create music long before ‘Let’s Get It On’ was written and will be used to make music long after we are all gone.”
That explanation won the day, and one possible reason comes down to a particular courtroom moment when Sheeran pulled out a guitar from behind the witness stand and serenaded the jury to show how songs with similar chord structure can be mashed-together. It is a familiar observation, with one musical comedy group even playing a mash-up of no fewer than 38 well-known songs using the same sequence of four chords. But Sheeran and his legal team realized that this was a point better demonstrated rather than simply testified about. The private concert likely charmed the jury, showed them a creative talent inconsistent with the Plaintiff’s “copycat” narrative, and illustrated a concept that may have been difficult to grasp in the abstract. And this advantage for “show” over “tell” applies beyond music to anything that can be demonstrated. In this post, I will share some thoughts on why the operating principle for a witness should be, “If you can show it, do so.”
Show the Concept
One consequence of a legal education is that it turns you into an analytical thinker. If a concept is explained to you, you get it quickly. But I think one mistake or blindspot among the legally-educated is that you can take that analytical thinking for granted. Watch a mock trial deliberation some time and it will be a good reminder that not everyone has that ability. Following a complex explanation takes mental resources that many people simply don’t exercise on a regular basis. For those people, and yes even for those who are higher on the analytical spectrum, the demonstration provides a better, faster, and more durable route to comprehension. In one of my cases, the witness was an expert on plant biology and pathogens, and instead of just testifying about the unchecked spread of bacteria, he used petri dishes glowing under UV light to show it. For the jurors, it was one of the standout moments from trial.
Show Your Mastery
Certainly, one of the goals and effects of Ed Sheeran reaching back to pull out a guitar and to mash-up some songs on the witness stand was to demonstrate the concept of songs sharing common chord structures, but also — and more basically — to convey, “I’m a talented guy.” And, importantly, it isn’t just any talent that matters, it is talent that helps the jury understand something that they need to understand in order to make a good decision. The implicit message from even the non-musical witness is, “I can help you understand this, and that will help you do your job.” Once you are truly useful to a jury, that is a big part of your credibility.
Show that You Can Break the Monotony
Here’s another thing that trained lawyers might take for granted: The view that trials are super interesting. To the average person, they aren’t — at least not in reality. There is a reason why Hollywood will pare down the opening statement and the key cross-examination to about 45 seconds. In the actual courtroom, as the facts and arguments are laid out much more slowly, it can feel pretty monotonous for a spectator. For that reason, anything that breaks things up and introduces some pizazz is something that stands out like a school field trip. Shake things up, if only to keep the jurors engaged.
In practice, you can’t always demonstrate, of course. Sometimes the subject area for testimony is very conceptual and cerebral. Sometimes the judge will place limits on a witness to step out of the strict Q and A structure. But think creatively: If it can be demonstrated, and if the court allows you to demonstrate it, then as the late Marvin Gaye would say, “Let’s get it on.”
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Other Posts on Intellectual Property:
- Take a Note from the Prince of IP (RIP)
- Tell Your Patent Invention Story In a Way That is Worth Copyrighting
- Account for Technophilia
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