Ed Sheeran's US copyright woes: A UK perspective
Ed Sheeran will stand trial before a jury in a Manhattan court over claims that he has committed copyright infringement because he “copied and exploited” parts of Marvin Gaye’s song “Let’s Get It On” when writing his own song “Thinking Out Loud”.
Structured Asset Sales, which reportedly owns a portion of the copyright in “Let’s Get It On” via Ed Townsend’s estate (co-writer of the song), is seeking $100m in damages.
US District Judge Louis Stanton denied Sheeran’s attempts to get the case dismissed. The music experts of the parties disagree as to whether copyright infringement has taken place.
The judge held that a jury must decide whether both songs are substantially similar, commenting that there is “no bright-line rule” for deciding such a question, and that “although the two musical compositions are not identical, a jury could find that the overlap between the songs’ combination of chord progression and harmonic rhythm is very close”.
While the authors of this article are not experts in US copyright law, it is interesting to consider how such a case would play out in England and Wales. In that regard, a useful comparison is the trial and judgment of a case that took place earlier this year, also involving Sheeran.
Mr Edward Christopher Sheeran MBE and Ors v Mr Sami Chokri and Ors EWHC 827 (Ch) [2022]
This case was heard over 11 days before the High Court of Justice of England and Wales, with judgment handed down on 6 April 2022.
Unlike in the US, in England and Wales a judge, rather than a jury, presides over civil trials for copyright infringement. In this case the judge hearing the case was Mr Justice Zacaroli.
The dispute related to Sheeran’s song “Shape of You” (“Shape”).
The defendants had notified the Performing Rights Society (PRS) of their contention that they should be credited as songwriters of “Shape”, causing the PRS to suspend all payments to the claimants in respect of the public performance/broadcast of “Shape”. The defendants contended that “Shape” infringed their copyright in a song called “Oh Why”.
Sheeran was one of several claimants, seeking a declaration of non-infringement. The defendants counterclaimed for copyright infringement.
The key legal issue in the case was whether a substantial part of “Oh Why” had been copied. The defendants alleged that an eight-bar post chorus section of “Shape”, in which the phrase “Oh I” is sung three times repeatedly, had been copied from the eight-bar chorus of “Oh Why”, where the phrase “Oh Why” is repeated. As the judge held “This catchy and memorable phrase is clearly central to the song ‘Oh Why’”.
Copyright law in the UK
In the UK, the Copyright, Designs and Patents Act 1988 (the “Act”) is the primary statute governing copyright law.
s.1(1) of the Act states that copyright is a property right which subsists in, inter alia, ‘original literary, dramatic, musical or artistic works’ and ‘sound recordings’.
s.3(1) of the Act defines a ‘musical work’ as a ‘work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music’.
Further, s3(2) states that copyright does not subsist in a musical work unless and until it is ‘recorded, in writing or otherwise’.
It was accepted by both the claimants and defendants that copyright existed in both “Oh Why” and “Shape”.
Copyright infringement
Sections 16(1)(a) and 17(2) of the Act provide that copyright in a musical work may be infringed if it is copied. ‘Copied’ means ‘reproducing the work in any material form’.
To amount to infringement, either the whole or a substantial part of the original work must be copied (s.16(3)(a) of the Act).
Determining what is a ‘substantial part’ is a qualitative, rather than quantitative, test. Has the alleged infringer copied elements of the original work which are the expression of the intellectual creation of the author of the work (see Newspaper Licensing Agency v Meltwater Holdings BV [2011] EWCA Civ 890 applying the guidance of the CJEU in the case of Infopaq International A/S v Danske Dagblades Forening [2009] ECDR 16)?
In the Shape case, the judge confirmed that “the essential consideration is to ask whether a defendant has taken that which conferred originality on the claimant’s copyright work (or a substantial part of it)”. He was satisfied that the evidence (including that of the defendants’ expert musicologist) proved that the elements of “Oh Why” said to be similar to “Shape” represented the expression of the intellectual creativity of the writers of “Oh Why”.
Thus, what remained to be assessed was “whether the particular similarities relied on are sufficiently close, numerous or extensive to be more likely to be the result of copying than of coincidence. It is at this stage that similarities may be disregarded because they are commonplace, unoriginal, or consist of general ideas.” And “in music cases, it is the sounds that are more important than the notes”.
Trite law
The judge restated trite law, namely that copying can be either conscious or subconscious. Moreover, while the legal burden rests with the person alleging infringement, in the case of conscious copying the evidential burden shifts to the alleged infringer if there is proof of sufficient similarity and proof of access to the allegedly copied earlier copyright work. A party pleading subconscious copying must establish “proof of familiarity” with the copied work and that there is a causal link between the original and infringing works (Francis Day and Hunter v Bron [1963] 1 Ch 587).
Sheeran denied that he had ever heard “Oh Why” before the defendants accused him of copyright infringement. Lengthy submissions were made by the defendants to the court and cross-examination of Sheeran took place over whether he had heard the song “Oh Why” before writing “Shape” and the process he undertook to write “Shape”. Particular attention was paid to whether Sheeran had subconsciously copied the song.
The defendants argued that Sheeran must have heard “Oh Why”. The defendants pointed to the possibility of someone in the music industry bringing the song to Sheeran’s attention and thus of him becoming subconsciously familiar with it.
However, the judge found that the defendants had not produced sufficient cogent evidence to conclude that, on the balance of probabilities, Sheeran had heard “Oh Why” before he wrote “Shape”. The judge commented that the defendants’ evidence that Sheeran had heard “Oh Why” was “speculative”.
To try to convince the Court that copying had taken place, the parties presented expert evidence to the Court, given by musicologists, whose evidence focused on comparing the two songs to assess their similarities/differences and whether “Shape” copied a substantial part of “Oh Why”. Having considered their evidence, the judge found that neither conscious or subconscious copying had occurred.
He concluded that the similarities between the two works was explained by reasons other than copying. While there were similarities between the elements alleged to have been copied from “Oh Why” and certain of the elements in “Shape”, there were also significant differences. As to the elements that were similar, his analysis of the musical elements of “Shape” more broadly, and of the writing process, provided compelling evidence that the alleged copied elements originated from sources other than “Oh Why”.
After finding that no copyright infringement had occurred, the judge granted the declaration for non-infringement requested by the claimants.
Key takeaways
Whilst elements of “Oh Why” and “Shape” sounded similar, that alone did not prove that Sheeran had copied elements from “Oh Why”. As the judge commented, coincidences between songs are not uncommon. The evidence the defendants presented to the Court did not prove, on the balance of probabilities, that copying had taken place.
How the case that Sheeran has to answer in the US will pan out remains to be seen. A key difference is that a jury will sit and hear the case. In this country, judges hearing allegations of musical copyright infringement are experienced in assessing the weight and value to be given to the parties’ evidence on the issue of whether the earlier copyright work has been copied. Juries normally do not comprise persons with such experience. While Mr Justice Zacaroli held that Sheeran did not copy the defendant’s copyright work, it is not out of the realm of possibility that a jury might have found differently.
Carl Steele is a partner at Ashfords. He can be contacted at c.steele@ashfords.co.uk
Chris Fotheringham is a solicitor at Ashfords. He can be contacted at c.fotheringham.co.uk
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