The songs in issue
'Shape of You' was co-written by Ed Sheeran, Steven McCutcheon and Snow Patrol's John McDaid when they collaborated in a recording studio on 12 October 2016. It was released as a single, performed by Ed Sheeran, in January 2017 and featured as a track on Ed Sheeran's album, Divide. The song was (and still is) incredibly popular – it became the best-selling digital song worldwide in 2017. It was the first song to pass 3 billion streams on the Spotify platform and has had over 5.6 billion views on YouTube.
Sam Chokri (who performed under the name Sami Switch), and Ross O'Donoghue, the first two defendants, wrote the song, 'Oh Why' which was performed by Chokri and released in March 2015, two years or so before 'Shape of You'.
Ed Sheeran and his co-claimants pre-emptively issued legal proceedings, in response to the defendants' notification to the Performing Rights Society (PRS) that they should be credited as fellow songwriters of 'Shape of You'. Following the notification, the PRS suspended all payments to the claimants for the public performance/broadcast of 'Shape of You'.
The claimants therefore commenced proceedings (which they warned they would do if the defendants took steps to suspend payments at collecting societies) seeking a declaration that 'Shape of You' had not infringed copyright in the defendants' earlier track. The defendants retaliated by issuing a counterclaim alleging that the claimants had copied their earlier track.
The defendants claimed that the eight-bar "hook" (meaning a particularly catchy, memorable and recurring part) of 'Shape of You' after the chorus with the phrase 'Oh I' was copied from the eight-bar "hook" in the chorus of 'Oh Why' in the defendants' track. The judge acknowledged that it was common ground that copyright subsisted in the defendants' track 'Oh Why'- but what lay at the heart of the case was whether Ed Sheeran and his co-writers had actually copied it. The defendants had argued that all of the claimants had access to the track 'Oh Why' and "as a result" had reproduced a substantial part of the 'Oh Why' "hook" in 'Shape of You'. By the end of cross-examination, however, the defendants claimed that it was only Ed Sheeran who had copied.
In particular, the defendants claimed that Ed Sheeran had deliberately and consciously copied, due to:
- The extent of similarity between the tracks;
- The access Ed Sheeran had to the track through various channels – for example, the defendants claimed Ed Sheeran would have been aware of the defendants' track, since both artists shared friends, for example the late Jamal Edwards who had created the YouTube Channel SBTV to promote lesser-known artists. Chokri had also tweeted Ed Sheeran and the two had allegedly previously met;
- Ed Sheeran being a 'magpie' with a propensity to collect ideas for songs in advance of writing them and habitually copying other artists.
In relation to copying, the defendants' QC, Mr Andrew Sutcliffe, asked the judge to stand back and 'focus on the bigger picture' and said the case boiled down to four 'unassailable points': similarities between the songs, (listening to the song as a whole); the "one-in-a-million" chance of two unique sounds correlating with one another within a space of months; the three "fingerprints" of Chokri's work found in Ed Sheeran's work; and the lack of any credible explanation from the claimants of how they had come up with the 'Oh I' hook.
The judge agreed that there were similarities, but went on to say that coincidences are not uncommon and that there were significant differences. Listening to the sounds as a whole, the two phrases played very different roles in the songs. In 'Oh Why' the phrase was a central part of the song and was 'dark' and brooding', whereas in 'Shape of You', 'Oh I' was used to fill the bar before the words, 'I'm in love with your body' and was more upbeat and catchy. The judge considered that if Ed Sheeran had been looking for inspiration, it would not have been from a dark, brooding song when his was more of an upbeat dance melody. He thought that the use of the first four notes was very short, simple, commonplace and obvious in the context of the rest of the song and that it was not credible that Ed Sheeran would have sought inspiration from other songs to come up with it. The judge also concluded that the three "fingerprints" that the defendants had alleged were present in the claimants' work did not exist.
In relation to those elements of the song that were similar, the judge was satisfied, due to compelling evidence (such as his analysis of the musical elements more broadly, the writing process and the evolution of the song), that the 'Oh I' phrase in Shape of You's hook was created organically and had evolved naturally, rather than from the claimants' track.
He also ruled that having reviewed all the evidence in relation to whether Ed Sheeran would have had access to 'Oh Why', whether by others sharing it with him or him finding it himself, this claim was no more than 'speculative'.
Fast work and copying
A particularly interesting point raised by the defendants was that Ed Sheeran could not possibly have written 'Shape of You' from scratch in such a short space of time on 12 October 2016, as Ed Sheeran had indicated, without copying it. The defendants' QC claimed that he must have come to the recording studio that day with preconceived ideas and that 'speed was indicative of copying'. The judge rejected this argument based on evidence from fellow songwriters who corroborated that he had a rare ability to 'create catchy songs at great speed' and accepted that when collaborating with others, he could 'work on lyrics and melodies at tremendous speed from scratch'.
Similar fact evidence
Another claim that came back to bite the defendants was their argument that 'similar fact' evidence proved that there were other instances of copying by Ed Sheeran. They relied on instances when Ed Sheeran had deliberately referenced the music of others, crediting them and seeking the relevant clearance. This, they believed, showed a propensity to copy others' work. The judge gave this argument short shrift and ironically used it to highlight that if someone is in the habit of openly referencing and crediting another's work, that makes it, 'less likely that they would set out to steal the creative work of others'.
Overall, the judge concluded that Ed Sheeran had not heard 'Oh Why' and had therefore neither deliberately nor subconsciously copied the song.
The judge rejected various arguments proposed by the defendants as to why the declaration sought by the claimants (confirming that they had not infringed copying in 'Oh Why'), should not be granted.
Among other arguments, the defendants contended that there was no commercial basis for granting a declaration because the total amount of royalties suspended as a result of their actions was "only" £2,200,000. A declaration was granted, however, with the judge recognising that £2.2 million was a substantial amount of money and that alone justified declaratory relief. In addition to that, Ed Sheeran had been branded a "magpie" who deliberately and habitually copied and concealed the work of others and he was entitled to clear his name. His fellow songwriters should also be given the opportunity to clear their names.
Claims of this nature against successful artists have increased throughout recent years – with an element of 'claim culture' prevailing in the music industry, harming artists and songwriters alike.
Posting a video on Instagram and reflecting on the court case, Ed Sheeran lamented that baseless claims of this nature are now "way too common" and that they are made in the hope that a settlement can be reached, which is cheaper than going to court. Further, he said "coincidence is bound to happen if 60 000 songs are released everyday… that's 22 million songs a year and there's only 12 notes that are available."
Technological advancements, such as the rise of music streaming on platforms, like Spotify, has enabled coincidental similarity between songs to become much more prevalent. This is especially true in genres such as pop, when there are a limited amount of notes and chords readily available to use, as highlighted by Ed Sheeran.
This high-profile case has sparked much excitement and publicity but it also highlights how nuanced and complicated disputes of this type can be. The case was heard over 11 days and involved a thorough and complex analysis as to whether there had been copying.
With thanks to Charlotte Budd, Solicitor Apprentice, for her contribution to this blog.
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