In recent years, Ed Sheeran (among other artists) has been subject of a number of lawsuits for alleged copyright infringement.
We have previously commented on the copyright lawsuits in respect of his songs Photograph and Thinking Out Loud, as well as the lawsuit against Ed Sheeran, Tim McGraw and Faith Hill in respect of The Rest of Our Life. Most recently, in 2019, we commented on the general spike of copyright claims in musical works in relation to Katy Perry’s Dark Horse and the case against Robin Thicke.
The claim
Over the course of 11 days across three weeks in March 2022, Ed Sheeran was in the High Court for a new copyright infringement claim against his song Shape of You. In this instance, formal proceedings were initiated by Ed Sheeran (and his co-authors) seeking a “declaration of non-infringement” following allegations by song writing duo Sami Chokir and Ross O’Donoghue, who claim that Ed Sheeran copied their song, Oh Why, specifically in the refrain “Oh-I-oh-I-oh-I-oh-I”. Ed Sheeran’s claim subsequently led to a counterclaim of infringement and both claims were heard together.
Having listened to both songs, the refrain is somewhat similar in both (and this is not denied by the parties). Ed Sheeran sings the refrain multiple times at each chorus of Shape of You and Sami Chokri singing the similar refrain (in terms of word arrangement rather than melody per se) in the chorus of Oh Why. However, the refrain in Shape of You is lower than in Oh Why.
Ed Sheeran has previously sought clearance for use of similar elements on the Shape of You track and shares royalties with the writers behind TLC’s No Scrubs, Sami Chokir and Ross O’Donoghue argued this was evidence that Ed Sheeran was a "magpie" who "borrows" from other artists. During the trial it was noted that in fact a musicologist reviewed the songs and identified similarities with other previous songs following which they were either changed or clearance was sought.
For there to be a successful claim of copyright infringement, firstly copyright has to subsist in the work. It has been argued that the refrain is not original but a commonplace “basic minor pentatonic pattern” and too generic to be protected by copyright. Ed Sheeran sang elements of Nina Simone's Feeling Good and Blackstreet's No Diggity by way of other similar examples.
Secondly, there must be copying (which means the infringer must be aware of the original work). The barrister for Sami Chokri has argued that the similarity between the refrains and the speed at which Ed Sheeran wrote Shape of You is “indicative of copying”. Sami Chokri also argued that they had promoted Oh Why to several people associated with Ed Sheeran (although not directly to Sheeran). Ed Sheeran (and his co-authors) have denied ever hearing Oh Why and there is no evidence that they did. It was alleged Jamal Edwards may have played the song to Ed Sheeran, although in a written statement taken before he died, Jamal Edwards denied this stating “Even if I was sent a copy, I did not share it with Ed”. Ed Sheeran also gave evidence of how he and his co-authors independently created their work, and that it was not “premeditated” but rather made up during short sessions with this particular element originating from “all of us three bouncing back and forth in a circle”. His barrister argued that the fast speed at which it was written was not indicative of copying but “indicative of the genius of Mr Sheeran”.
It will most likely take some time before a judgement is made on this case but the judge told both sides he would deliver it as soon as he could. The fact that the refrain at issue is relatively short and simple, and the fact that there is no evidence that Ed Sheeran or his authors had heard the prior work, might suggest a finding against Ed Sheeran is unlikely. If Ed Sheeran is found to infringe, it may further open the floodgates for similar claims against successful music artists.
High Court v Intellectual Property Enterprise Court
This case has been seen in the Chancery Division of the High Court, rather than the Intellectual Property Enterprise Court (IPEC), which is most likely due to the value of the case. The benefit of being seen in the High Court is that there is no cap on recoverable damages, compared to a £500,000 cap in the IPEC. There is also a much greater ability to recover costs in the High Court (whereas the losing party’s liability for the other side’s costs are capped at £50,000 in the IPEC). It has been estimated that £20 million in royalties have been suspended awaiting decision of this claim, which is of course far higher than the cap in the IPEC.
There are specific considerations to be made regarding the transfer of proceedings to/from the IPEC, including whether the party can only afford to bring or defend a claim in the IPEC and whether it is appropriate to be determined by the IPEC based on the value, complexity and estimated length of trial.
The trial lasted 11 days in total, which is considerably longer than claims in the IPEC (typically lasting around two days), and will also mean that the legal costs are likely to be particularly high. If the infringement claim is successful, there is likely to be subsequent argument (and a potential hearing) over the quantum of damages (and there is always the risk that the legal costs outweigh any eventual damages awarded or agreed).
Similar cases
One of the other cases that we have commented on before relates to Katy Perry’s Dark Horse and the claim she faced from Marcus Gray, aka Rapper Flame, for copying his track Joyful Noise. A jury found in favour of Gray in 2019, which was later overturned by a judge in 2020 on the basis that Perry did not infringe independently protectable musical elements. The appeals court has subsequently agreed that the jury verdict should not stand and the contested eight-note pattern lacked the “quantum of originality” that was needed for copyright protection. As such, Perry is no longer ordered to pay Gray damages for the copyright infringement. This could be considered analogous to Ed Sheeran’s case and we await to see if a similar decision is reached. Similarly, Taylor Swift is facing a claim in America (that she was unable to get dismissed without trial) that the line “‘Cause the players gonna play, play, play, play, play” and “haters gonna hate, hate, hate, hate, hate“ from her 2014 hit “Shake it Off” infringes the line from Sean Hall and Nathan Butler’s 2001 song ‘Playas Gon’ Play’: “Playas, they gonna play, and haters, they gonna hate.” – which is likely to consider similar issues.
Such copyright infringement cases are currently common and in the public eye, and the outcome will determine whether more claims are likely to be made.
With the finite amount of musical notes (and combinations of them) or lyrical arrangements available, the step taken by Ed Sheeran of using a musicologist to review songs for similarities and to either change or credit any influences is a prudent measure that artists should take where possible. High profile cases such as this (especially if the judge considered there has been an infringement) are likely to mean that the rise of copyright infringements against musical works will continue to soar.
For more information or advice on music copyright or clearance please contact the authors Samantha Thompson, Colin Bell or a member of the Intellectual Property Team.
