Ed Sheeran wins in the High Court

Ed Sheeran has come out on top in his long-running copyright infringement dispute with Sam Chokri. The case goes back to 2017 when Chokri’s lawyers accused Sheeran’s best-selling song “Shape of you” of copying Chokri’s “Oh Why”. In response, Sheeran claimed for a declaration of non-infringement, to clear his name. After five years or so, we have a judgment which will likely shape the future of music copyright infringement cases.

Our previous blog on this case provides a useful summary and context which you can read here.

Oh, but what was in dispute?

Chokri’s song, includes a main hook of “Oh Why, Oh Why, Oh Why…”, while Sheeran’s consists of “Oh I, Oh I, Oh I…”. A hook in music refers to a section which catches the ear of the listener and according to Chokri’s legal team, the Oh I hook was “strikingly similar” to the Oh Why hook.

However, simply copying the hook or section of a song is not the only factor a court will consider when assessing whether copying has taken place. A key element in music copyright infringement cases is whether the alleged infringer has heard the song which they have allegedly infringed. It follows that, you cannot copy someone else’s music if you haven’t heard it before.

According to the barrister representing Chokri, Sheeran is a “magpie” who “habitually copies” other artists’ songs. Further, he claimed Sheeran sometimes acknowledges songs and sometimes does not. Sheeran asserted he never knowingly heard of Chokri’s song before, which was disputed as social media and mutual music industry contacts meant Sheeran may have heard Oh Why subconsciously. The Judge in this case stated there was not enough evidence to prove Sheeran had heard Oh Why before his writing process.

In relation to the hooks and verse in question, expert evidence from musicologists helped assist the Judge decide on the degree of similarity. Sheeran’s lawyers put forward that Shape of you differs rhythmically and melodically from Oh Why, and the verse’s pentatonic pattern was common in the music industry. If a section of music is common, it would (likely) not be original and therefore, not be protected by copyright. According to the Judge, Sheeran had “neither deliberately nor subconsciously copied” Chokri’s song and the Oh I hook originated from other sources.

Comment

Following the judgment, Sheeran released a video on Instagram explaining that in his view, there was a claim culture in the music industry. He refers to claims being made for copying, which are quickly settled for large sums to avoid the expensive and time-consuming option of going to court, even if there is no basis for the claim. In terms of the copying itself, Sheeran makes the point that “there’s only so many notes and very few chords used in pop music” and “coincidence is bound to happen”.

One thing Sheeran is now doing is documenting his creative process when making new songs. This in general, is a useful tip for anyone creating original copyright work such as music, books or paintings – as you’ll have a record of how you created the piece of work.

In one sense, this judgment tips the balance in the claim culture Sheeran refers to. Lesser-known artists, like Chokri, may think twice before accusing bigger artists of copying their song. At the least, they’ll analyse the merits of their case extensively, including whether the alleged infringer heard the song in question. What remains to be seen is whether Judges are more likely to infer that an artist such as Sheeran copied or heard a song beforehand, if that song or artist is more popular i.e., Marvin Gaye.

Significantly though, this judgment has developed music copyright law in the UK and songwriters in particular, will feel more confident about defending a potential claim for copyright infringement.

Written by Saad Khan – Trainee Solicitor