In winning shape: Ed Sheeran’s copyright dispute

Following an intense 11-day trial at the High Court of England and Wales, singer Ed Sheeran successfully defended his reputation following accusations of copyright infringement launched by grime artist Sami Chokri.

Chokri (who performs under the name Sami Switch) alleged that there is a “striking similarity” between Sheeran’s number one hit ‘Shape of You’ and his own 2015 song “Oh Why”.

This decision comes after a wave of copyright infringement cases against well-known musicians. Yet, it also demonstrates that claims of this nature are difficult to succeed on in court, given both the burden of establishing copying and the growing recognition that many pop melodies and lyrics are commonplace across the industry.

Background

In 2018, Chokri, along with his co-writer Ross O’Donoghue, filed a complaint with PRS for Music (one of the industry’s collective rights management organisations),alleging that Sheeran’s 2017 chart topper infringed the copyright in Chokri’s “Oh Why”, released in 2015.

PRS suspended Sheeran’s (and his co-writers’) royalty payments for any broadcast or performance of “Shape of You”.

Later that year, Sheeran and his co-writers issued legal proceedings against Chokri, seeking a declaration from the court that no infringement had occurred, and that the royalty payments should resume.

Unsurprisingly, Chokri counterclaimed, asserting infringement and seeking damages or an account of profits from Sheeran and his co-writers.

How does copyright protect music?

In the UK and many other jurisdictions, copyright subsists automatically upon the creation of original literary, artistic, musical and dramatic works.

Different aspects of a song fall into different categories:the lyrics are protected as literary works, the melodies as musical works, and the recorded work as a sound recording.

Copyright is infringed where a third party performs without permission a “restricted act” in respect of the whole, or a substantial part, of the copyright work.

These acts include copying or distributing the work to the public, which also covers “mechanical” copying (where the work is transposed onto other media,eg, CDs).

The benchmark of “substantial” is assessed on a qualitative basis; it is not simply a question of how much of a song is copied.

The British music band, The Verve, was accused of copyright infringement after they sampled a symphonic version of The Rolling Stones’ song,“The Last Time”.

The settlement required The Verve to relinquish all royalties from their hit “Bitter Sweet Symphony”(which went triple-platinum in the UK), but the Rolling Stones eventually voluntarily returned the song-writing credits to The Verve in 2019.

A middle ground?

During this trial between Sheeran and Chokri, it was common ground between the parties that “Oh Why” is original, and that copyright subsists in it.

However, Sheeran strongly disputed that the work had been copied. Chokri’s barrister submitted that Sheeran has “an echo chamber in his mind”, using the words and melodies from other works he has heard.

He described that “there is a middle ground between stealing and coincidence,” and that it was likely Sheeran had heard Chokri’s song before writing “Shape of You”, owing to “clear, cogent and compelling” evidence that “Oh Why” was accessible to Sheeran and had been sent to Sheeran’s close contacts.

Chokri, however, was not required to prove Sheeran’s intent to copy Chokri’s work; provided that there was compelling evidence that he had access to, or was aware of, “Oh Why”, Sheeran could be found to have copied the track subconsciously.

Sheeran rejected Chokri’s claim, maintaining that he does not simply forget songs that he has heard, and that he does not recall hearing Chokri’s uncharted song (or of the artist himself) before composing “Shape of You” (or before the litigation).

Sheeran also explained that the“minor pentatonic pattern” in “Oh Why” is frequently used by musicians, indicating that it is not sufficiently distinctive to base an inference that Sheeran copied Chokri’s work. He made clear that the contested element of “Shape of You” was brief and the relevant parts of both songs were “entirely commonplace”. He added that, if various songs were sung in the same key, they would resemble one another.

A remarkable moment in court was when Sheeran sang snippets of his own tracks: “I See Fire” and “Shape of You”, as well as Nina Simone’s “Feeling Good” and Blackstreet’s “No Diggity” to showcase the similarities.

Forensic musicologists were also instructed by the parties to give expert evidence as to the similarities of the hooks; unsurprisingly, the expert instructed by Chokri concluded that the songs were “significantly similar”, while Sheeran’s expert reasoned that the extent of the alleged similarities was overstated.

Judgment

In his judgment handed down on April 6, Justice Zacaroli ruled that Sheeran neither “deliberately nor subconsciously” copied Chokri’s work. Taking into account the evidence put forward by the parties, he concluded that: