Copyright claims between musicians and songwriters are increasingly commonplace, which is likely due to the proliferation of channels through which music is accessed. Despite this, the number of musicians who actually find themselves in court for copyright infringement remains relatively small. This reflects that these cases are not only difficult and therefore expensive to prove in Court; they can also be damaging to reputations if unsuccessful. Pre-action settlements are likely to be particularly attractive in this area and their use, usually on terms of confidentiality, means the number of copyright issues in the public domain is far from reflective of the true position.
Ed Sheeran’s “Shape of You” was released in January 2018 and quickly became one of the best performing songs of the decade. Shortly after its release, musicians Sami Chokri and Ross O’Donoghue alleged that “Shape of You” borrows ‘lines and phrases’ from their 2015 song “Oh Why”.
Ed Sheeran and his co-writers (Steven McCutcheon and John McDaid) commenced legal proceedings in May 2018 to seek a declaration of non-infringement of copyright and also claim for damage to reputation. In July 2018, Chokri and O’Donoghue counterclaimed for copyright infringement.
Whether Ed Sheeran and his co-writers did copy the hook of “Oh Why” is the question that was to be decided by the High Court during the 11-day trial last month.
What is copyright?
Copyright is a form of intellectual property (IP) that protects works of authorship of various kinds, provided they are original and recorded in some tangible form. As it arises automatically, on the creation of the work, copyright need not be registered to exist. For songs, copyright exists separately in lyrics (‘literary works’), music (‘musical works’), and sound recordings. In each case, the works are ‘fixed’ when they are recorded.
The requirement for originality is often considered a low threshold. ‘Original’, for the purposes of copyright, means only that the work originated from the author – i.e. that it was not copied. Consequently, there is an expectation that some degree of labour, skill or judgment was employed in the work’s creation. It is not necessary for the work to be distinct from any other work, even one that preceded it. Provided there is no copying of one work from another, copyright can subsist in identical works that originate separately and independently.
This is one of the reasons that claims of copyright infringement can be somewhat uncertain. Demonstrating that one song sounds like another is not enough; it must be proven that a) its author was aware of it and deliberately copied all or a substantial part of the song or b) there has been subconscious copying. The latter is established if there is a casual link between the songs, based on the inferences drawn from evidence.
Copyright grants the owner of the IP an exclusive right to deal with it in certain ways. For example, copying, performing or adapting it. In this case, Chokri and O’Donoghue allege that the “Shape of You” hook (i.e. “Oh I, Oh I, Oh I, Oh I”) was copied from their song “Oh Why”.
In order to successfully claim copyright infringement, Chokri and O’Donoghue were required to show Sheeran had heard the “Oh Why” track and deliberately copied it or that there was a ‘causal connection’ between their work and Sheeran’s to support an argument of subconscious copying.
a) “Shape of You” was made at a time when Sheeran had access to “Oh Why”; and
b) the similarities between the allegedly copied features of the song are so close, numerous and extensive, that they cannot be coincidental.
Chokri and O’Donoghue’s song came out two years prior to Sheeran’s, so was certainly possible that Sheeran might have heard “Oh Why” before composing “Shape of You”. This was a key issue in dispute.
Sheeran, however, asserted that “Shape of You” was produced in one sitting by three musicians ‘bouncing back and forth in a circle’. He argued that the similarity to “Oh Why” was therefore coincidental and the requirement for copying was not made out. Sheeran maintained that though he sometimes references other songs in his music, he is scrupulous in obtaining clearance or offering attribution.
Separately, Sheeran also argued that similar elements were so generic that neither party has copyright to infringe. As explored above, originality in copyright has less to do with precedence (‘has this been done before?’) than the origin (‘how did the claimant produce this work?’). Still, if a rhythmic pattern can be said to be so unoriginal, so ubiquitous in music that all parties must have been aware of it, then arguably neither can claim it as their own intellectual creation. At the very least, accusations of copying are unlikely to be compelling.
The judge, Mr. Justice Zacaroli, gave his judgment on 6 April 2022 and found that there had been no infringement of copyright, in favour of Mr. Sheeran and his co-writers. In summary:
- the defendants had focused on the three points of similarity whilst ignoring all the points of difference.
- the evidence that the “Oh I” hook originated from sources other than “Oh Why” was “compelling”.
- there was no more than a speculative foundation for Mr. Sheeran having heard “Oh Why” prior to writing Shape of You or indeed these legal proceedings.
- Mr. Sheeran did not deliberately or subconsciously copy it for the hook in Shape of You.
- Accordingly, Mr. Sheeran and his co-writers did not infringe the copyright of “Oh Why” and the declaration of non-infringement should be granted.
Whilst similarities in music (and other copyright works) are common, these can be entirely coincidental, and the existence of similarities is not sufficient to succeed in a copyright infringement claim. Detailed evidence is required to show that there has been deliberate or subconscious copying and if there has been copying it is in relation to a substantial part of the copyrighted work.
The joint statement released by Sheeran, McCutcheon and McDaid expressed concern that the music industry is being damaged by the number of baseless copyright claims which are brought against artists, acknowledging that “There’s only so many notes and very few chords used in pop music”.
This case is a fresh reminder of how difficult copyright claims are to bring and how heavily dependent they often are on factual witnesses and their recollections at the time. In this case witnesses were asked to recall and comment on events from 2016. Both parties have explained how ‘traumatising’ they have found the Court process and 11 days of trial. This will no doubt reinforce the perception that confidential, pre-action settlements (even in weaker copyright infringement claims) are preferable to court proceedings. Certainly, this case is very unlikely to have galvanised parties litigate.