Ed Sheeran Shows The Shape Of the UK IP Law In Copyright Case
A few days ago, the High Court of Justice of England and Wales ruled in favor of British pop-star Ed Sheeran in a trial over his 2017 hit “Shape of You,” finding that the singer had not “deliberately or subconsciously” copied the hook of a different song,“Oh Why.”[1]
In 2017, songwriting duo Sami Chokri – a grime artist who performs as Sami Switch – and Ross O’Donoghue publicly accused Ed Sheeran of plagiarising their song “Oh Why”, and notified the Performing Rights Society, a British body that pays song royalties, that they should be credited as songwriters on “Shape of You.”[2] The Society then suspended all royalties payments to Sheeran.[3] Legal proceedings began in May 2018 when Sheeran and his co-writers took preemptive legal actions, asking the High Court to declare they had not infringed Chokri’s copyright.[4] That prompted the “Oh Why” writers to hit back with counterclaims for copyright infringement two months later, alleging that “Shape of You” infringes “particular lines and phrases” of their composition.[5]
Sheeran is not unfamiliar with copyright infringement accusations. In 2017, he was sued by members of TLC, who claimed that his song, “Shape of You,” stole its vocal melody from their 90s hit “No Scrubs.”[6] The parties settled the case out of court and Sheeran gave the band songwriting credits on the track.[7]The same year, British X-Factor winner Matt Cardle alleged that Sheeran’s “Photograph” was a note-for-note copy of one of his songs.[8] This suit also settled, with Sheeran paying Cardle twenty million dollars.[9] Sheeran currently faces a U.S. lawsuit for his song “Thinking Out Loud,” brought by the heirs of songwriter Ed Townsend for Marvin Gaye’s song “Let’s Get It On.”[10]
In their counterclaims, Chokri and O’Donoghue claimed that the similarities between the hooks in the chorus of Sheeran’s song, which goes “oh I, oh I, oh I,” was lifted from their chorus “oh why, oh why, oh why” and the speed with which Sheeran wrote “Shape of You” was indicative of copying.[11] Furthermore, Sheeran must have been aware of Chokri’s song because they were promoted by the YouTube channel SBTV at around the same time, and they allegedly had mutual friends.[12] Sheeran denied this allegation by providing evidence of the evolution of the “Oh I” phrase, including audio recordings of the writing process.[13]
While there were certain similarities between the two songs including how the tracks were vocalized and harmonized, Judge Zacaroli ruled that there were a number of important differences, including the melody, rhythm and mood.[14] Ultimately, the court noted that certain elements present in both tracks were in fact common to numerous songs, finding, for example, that:
the use of the first four notes of the rising minor pentatonic scale for the melody is so short, simple, commonplace and obvious in the context of the rest of the song that it is not credible that Mr. Sheeran sought out inspiration from other songs to come up with it.[15]
On the second ground, the Judge ruled that the efforts to promote ‘Oh Why’ via social media were not met with any “material success.”[16] The judge was neither convinced by the arguments raised by Chokri and O’Donoghue that sought to prove that the track had made its way to Sheeran through industry mutual contacts.[17] In so ruling, the court concluded that the evidence “provides no more than a speculative foundation” for Sheeran having heard “Oh Why.”[18]
Proving access to the infringed work is one of the pillars of any copyright infringement. Prior access must be demonstrated by hard evidence to sustain a claim for copyright infringement in the music industry.[19] However, where such evidence is found, it does not necessarily prove copying, particularly where the defendant can demonstrate that the challenged work had different origins.[20]
The Sheeran decision follows a landmark ruling in a U.S. copyright infringement appeal brought by Katy Perry over her 2013 hit “Dark Horse.”[21] In March 2020, the district court issued a ruling vacating the $2.8 million jury’s verdict in favor of the rapper Marcus Gray (aka Flame).[22]Flame claimed that Katy Perry’s song plagiarized an eight-note ostinato — a short melodic phrase repeated throughout a composition — from his 2009 song “Joyful Noise.”[23] The Ninth Circuit ruled that the rapper had not presented enough evidence showing “substantial similarity” between the musical notes, and so was attempting to claim an improper monopoly over conventional “musical building blocks.”[24]
In the recent years, the number of high-profile copyright cases in the music industry has surged, notably due to the rise of streaming platforms like YouTube and Spotify. However, to achieve success on claims for copyright infringement, the claimant shall prove the existence of substantial similarities between the songs at issue, and the likeliness of access to the prior song that shall be supported by actual evidence.
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