Following an 11-day trial in London, featuring Ed Sheeran briefly singing from the witness stand, the High Court on Wednesday handed down its decision in Sheeran & Ors v Chokri & Ors, a copyright infringement case concerning the pop superstar’s 2017 hit song, ‘Shape of You’. The Defendants alleged that the “Oh I” post chorus section of Sheeran’s hit was copied from ‘Oh Why’ a track by Sami Switch, and notified PRS of their contention that they should be credited as co-writers, following which the claimants brought proceedings seeking a declaration of non-infringement. 

(Sheeran & Ors v Chokri & Ors [2022] EWHC 827 (Ch) (06 April 2022))

Deliberate/Subconscious Copying

The Defendants contended that Sheeran and co had either consciously or subconsciously copied the ‘Oh Why’ hook in the song ‘Shape of You’. Assessing the similarities and differences between the songs, the Judge noted that while there were certain similarities between the two (including how the tracks were vocalised and harmonised), there were a number of important differences, including the melody, rhythm and mood.

Sheeran provided evidence of the evolution of the “Oh I” phrase, including audio recordings of the writing process, which was considered “compelling” in finding that the source for the refrain in ‘Shape of You’ was other than ‘Oh Why’.

The Defendants’ argument that ‘Shape of You’ was written in a short timescale, suggesting Sheeran had preconceived ideas on the song, was rejected. This was due to a number of artists who had worked with Sheeran citing his reputation for having the ability to create catchy songs at great speed. This was, however, of little relevance given the simplicity of both the words and melody of the two phrases at issue.

Judge Zacaroli ultimately ruled there was no evidence that Ed Sheeran had deliberately or “subconsciously” copied from ‘Oh Why’ when he wrote ‘Shape of You’. Importantly, the Judge 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”.

Access all areas

Proving access to the infringed work is one of the pillars of any case on copying, with the Judge noting its importance to both the primary claim of deliberate copying, and the alternative that Sheeran had done so subconsciously. The Judge noted that the efforts to promote ‘Oh Why’ via social media were not met with any “material success”, and that the song had only been viewed on YouTube 12,914 times after two years. The Defendants also sought to prove that the track had made its way to Sheeran through industry contacts, including the late Jamal Edwards who was a friend to both Sheeran and Chokri. Ultimately, the Judge was not convinced by any of these arguments.

The Defendants also tried to rely on Sheeran being a follower of the “UK scene” as evidence that Sheeran would have come across the track, which the Judge rejected. The Judge concluded ultimately that the possibility that Chokri’s attempts to publicise and share his music might have led to it coming to Sheeran’s attention are “at best speculative”.

An interesting defence was submitted by Sheeran based on nuances to the originality threshold resulting from EU caselaw. He argued that Chokri’s ‘Oh Why’ was not protected as it was not sufficiently original. This failed as an original combination of commonplace elements can be (and was here) sufficient intellectual creativity. The judge’s conclusion on this is good news for all musicians, although it was of little significance here given there was no finding of any copying or infringement.

Comparison to U.S. cases

The Defendants also submitted the argument that Sheeran has been accused of copying other music in the past. These arguments included (amongst others) the complaint against ‘Shape of You’ based on the song ‘No Scrubs’ by the band TLC, a US complaint which ultimately led to the writers of that track being given a credit on Sheeran’s track (on the advice of US counsel). The Judge in the present case shared his opinion on the issue and concluded “from an English law perspective… I find there are insufficient similarities between them”. Perhaps the key differentiator between the two jurisdictions is the possibility in the US of having such questions decided by a jury, and the added uncertainty that can sometimes bring.

The most famous example of this was the Blurred Lines case[1], in which a jury decided that Pharrell Williams and Robin Thicke’s song ‘Blurred Lines’ infringed the copyright in Marvin Gaye’s song ‘Got To Give It Up’. The judgment was criticised at the time as potentially opening the floodgates to litigation with writers claiming a monopoly on a “musical style”. It is however worth noting that that decision was upheld on appeal.

Conclusion

The case was followed closely across the music and legal industries, with some commentators voicing concerns that copyright law is not keeping up with the times. Indeed, Sheeran highlighted the sheer volume of tracks being uploaded every day in an Instagram post following the judgment, commenting that “There’s only so many notes and very few chords used in pop music. Coincidence is bound to happen…” In an interview with Sheeran due to run tonight on Newsnight, the star also revealed that he now films his song writing sessions as a precautionary measure. The decision, and its repercussions, show the impact that technology is having on not only the legal framework, but the creative process itself.

[1] Williams v. Gaye, 885 F.3d 1150 (9th Cir. 2018) (Blurred Lines Case)