Ed Sheeran has been a prominent player in modern pop music over the past decade. With all successes in creative music production and release, there can be caveats related to the copyright and plagiarism of musical works, mainly in copyright infringement disputes and losses caused by profits in relation to alleged infringements. Not uncommon in the music industry, Mr Sheeran is one of many caught in the realm of copyright disputes.
Sheeran has previously battled a copyright dispute made against him for his hit song “Photograph”, settling at almost £14m ($20m) for the copyright infringement claim in the US. On this occasion, Sheeran is under the magnifying glass for his 8 times certified platinum record “Shape of You” released in 2017. More notably a song that has since become the most streamed song on Spotify at the time of this article.
The legal proceedings of this copyright dispute were launched in May 2018. In an atypical manner, Mr Sheeran and co-authors pre-emptively sued Mr Chokri, known as Sami Switch in the industry, along with co-author Mr O’Donoghue for false accusations of copyright infringement. Mr Chokri and co. made their own claim of infringement on their song “Oh Why” released two years prior to “Shape of You”. They claimed that Sheeran and his two co-authors had composed a song that is “blatantly copying” various parts of their song.
For copyright to be applied to a new musical work under UK copyright law, the automatic right is applied when:
For a piece of musical work to be considered to be infringing on another artist’s copyright, the musical work must therefore be of unoriginal expression and/ or of plagiaristic intent. The definition of musical works that can be copyrighted, the similarities of the two songs, and the court proceedings have been presented below.
Intellectual property rights in musical work and compositions can be at times a challenging area to navigate. For musical work or composition to be copyrighted individually, “the song” typically falls under one of the below definitions:
In this case, Mr Chokri and his co-writer claimed that the central hook in Mr Sheeran’s song was “strikingly similar” to the hook in their earlier released song. In the song “Oh Why” the phrase “oh-why-oh why-oh-why-oh-why” is sang in a pentatonic scale with 4 repetitions of the lyrics occurring throughout the song. In Sheeran’s “Shape of You” there is a similar repetitive hook comprising of a vowel heavy lyrical component “Oh-I-oh-I-oh-I-oh-I” which is sang on a similar scale, albeit at a faster tempo than the claimant’s song.
The relevant hooks in each song can be found below:
Shape of You by Ed Sheeran Oh Why by Sami Switch (Sami Chokri)
From the initial court hearings, Mr Sheeran has denied any possibility of infringement. Initially, the creative process was detailed in court, where excerpts of the recording sessions for “Shape of You” were played for the court.
During recording, Mr Sheeran had drawn similarities between the song under question and Blackstreet’s “No Diggity” to which he followed to compare to Nina Simone’s “Feeling Good”. Mr Sheeran sang the songs to illustrate how melody is “entirely commonplace” in the pop genre, where he continued that “If you put them all in the same key, they’ll sound the same”. He further presented evidence that all measures were taken to ensure the originality of his work with a musicologist prior to releasing the record.
Sheeran continued: “I have been as scrupulous as I possibly can and have even given credits to people who I believe may have been no more than a mere influence for a songwriting element. This is because I want to treat other songwriters fairly.” Having credited the group TLC for “Shape of You” in the past, although after the release of the record.
Mr Chokri has also presented evidence that they made a substantial effort to bring the claimant’s song to the attention of Mr Sheeran. However, Mr Sheeran denied hearing Mr Chokri’s song before he wrote “Shape of You” in autumn 2016. The court asked Mr Sheeran if he could draw similarities between his song and the claimants’ song to which he stated: “Fundamentally, yes. They are based around the minor pentatonic scale; they both have vowels in them”. The pentatonic scale being one of the most commonly used scales.
The likelihood of similarities in melodic arrangements were discussed as a result. If there are around “60,000 songs released on Spotify every day”, almost 22 million songs are likely released per year. Concurrently, there being 12 notes available for use in a particular arrangement, there will be a possible chance of coincidence of a 3-chord arrangement in a song at 1:1728, with 1:21,000 for 4-chords, and 1:250,000 for a 5-chord arrangement. Probable coincidence could be likely.
This dispute reached London’s high court for an 11-day trial, where the claimant accused Mr Sheeran and co-authors that they were actively intending to “intimidate” the claimant with the burdensome cost of a legal defence “until they abandon their claim”. This was met a response from Mr Sheeran and co. that the trial was based on honesty and “win or lose we had to go to court” to establish that copyright disputes were to exist to not obstruct the creativity of artists.
The trial before Mr Justice Zacaroli ruled on the 9th of April that Mr Sheeran had not infringed on Mr Chokri’s song and if there were any possible similarities they were “neither deliberately nor subconsciously copied”. The trial has been commented to be one of many that is changing the trajectory of copyright infringement for the signwriting industry.
From this case it is evident that the matter of copyright of musical works can be exceptionally challenging. Musical inspiration, intended plagiarism, and similarities that arise in the fundamental construction of musical works can be contributing factors to copyright disputes, whether explicitly intended or based on the inherent manner in which music is constructed. Assessing the similarities and nuances between such issues are key, where at times they mainly lie in how an individual may process the work. Additionally, this case highlights the necessity of the creator or artist’s own skill, labour, effort, and judgement when creating an original piece of musical work.
If you have any questions regarding copyright, design, or any other matters on intellectual property please get in touch with one of our team members at Wilson Gunn.