High Court victory for Ed Sheeran in latest copyright row
Background
On January 6th 2017, Ed Sheeran released the song ‘Shape of You,’ which became the most streamed song of all time on Spotify (with over 3 billion streams) and the best-selling hit in the UK in 2017. It reached number-one on the singles charts of 34 countries.
British musician Sami Chokri (who performs as Sami Switch) released the song ‘Oh Why’ in mid-March 2015, co-written with Ross O’Donoghue. After the release of ‘Shape of You,’ Chokri and O’Donoghue claimed that Sheeran had copied elements of ‘Oh Why.’ Specifically, they argued that the eight-bar post-chorus ‘hook’ in which the phrase ‘Oh I’ is sung three times (referred to in the judgment as the ‘OI Phrase’) was copied from the eight-bar chorus of ‘Oh Why’ in which the phrase ‘Oh Why’ is repeated (referred to as the ‘OW Hook’).
Following Robin Thicke and Pharrell Williams in their claim for declarative relief against the family of Marvin Gaye over the song ‘Blurred Lines’[1], Sheeran and the other writers of ‘Shape of you’ took the step of bringing a proactive claim against Chokri and O’Donoughue in May 2018, asking the High Court for a declaration that ‘Shape of You’ did not infringe the copyright in the earlier song. Chokri and O’Donoughue counterclaimed for copyright infringement, seeking damages or an account of profits in relation to ‘Shape of You.’
Judgment
In his judgment following the 11-day trial that concluded on March 22nd, Mr. Justice Zacaroli found in favour of Ed Sheeran and the other writers of ‘Shape of You’[2].
The judge found that ‘[w]hile there are similarities between the OW Hook and the OI Phrase, there are also significant differences’[3]. He found that the Defendants’ evidence on whether Sheeran had even heard ‘Oh Why’ was ‘speculative,’[4] and as a matter of fact, he found that Sheeran had not heard ‘Oh Why’ prior to writing ‘Shape of You.’ Zacaroli J concluded that ‘Mr Sheeran had not heard Oh Why and in any event that he did not deliberately copy the OI Phrase from the OW Hook’[5]. Accordingly, the judge dismissed the counterclaim, and found for Sheeran, adding that:
‘the justification for declaratory relief was only increased by the fact that although the case only relates to Shape, it was pursued against him on a basis (which I reject) that he is a “magpie” who habitually deliberately copies and conceals the work of other songwriters.’[6]
During his time in the witness box, over the space of two days, Sheeran used the example of melodies from Blackstreet’s ‘No Diggity’ and Nina Simone’s classic ‘Feeling Good’ to show the the ‘basic minor pentatonic pattern’ in Shape of You is a common feature of popular music. Sheeran said that he gives credit where it is due – citing the credit on Shape of You given to the writers of TLC’s 1999 hit ‘No Scrubs,’ which Sheeran interpolated for his song.
Post-Judgment Comments by Sheeran
Following the judge’s ruling, Sheeran released a video on social media where he criticised ‘opportunists’ for making baseless allegations of copying, saying that such public claims are made ‘with the idea that a settlement will be cheaper than taking it to court, even if there’s no basis for the claim.’ Sheeran also observed that such practices are ‘…really damaging to the song-writing industry. There’s only so many notes and very few chords used in pop music. Coincidence is bound to happen if 60,000 songs are being released every day on Spotify. That’s 22 million songs a year and there’s only 12 notes that are available.’
In a joint statement following the judgment, Sheeran and the other authors of ‘Shape of You’ said that, as well as the financial cost, their mental health and creativity had suffered a result of having to take the case through to trial.
An increasingly crowded space for popular music
As Sheeran mentioned, the sheer quantity of music being released every day, along with the common patterns within musical genres, will mean that similarities between songs are inevitable – especially when short elements are excerpted for comparison, such as the eight-bar hook in this case. The increasing use of AI in the musical creation process is likely to lead to an even more crowded space in the coming years, with further examples of parallel compositions of similar music.
The High Court’s judgment confirms that whether copying has occurred is very much dependent upon the facts of each case. As noted above, in this case, the defendants were not able to show that Sheeran had listened to ‘Oh Why’ prior to writing ‘Shape of You,’ even though the song had been freely available on YouTube for some time.
Similar considerations are likely to arise in another recent case brought by the Florida Reggae band, Artikal Sound System against British singer Dua Lipa for allegedly infringing their 2017 song ‘Live Your Life’ with her 2020 smash hit ‘Levitating.’ The lawsuit, filed in California, states that Lipa had access to ‘Live Your Life’ (it was on Youtube), but does not explain in detail why the band believes that the popstar heard their song and copied it when recording ‘Levitating.’
