In March, we highlighted the trial involving Ed Sheeran based on the ultimately unsubstantiated allegations of copyright infringement that his song Shape of You infringed elements of a third party song Oh Why (the “OW Hook”) specifically in the refrain “Oh-I-oh-I-oh-I-oh-I” (the OI Phrase”).
The judge has now, in a relatively quick turnaround, found in favour of Ed Sheeran (the allegation of copying against his co-authors Steven McCutcheon and John McDaid was dropped by the other side following their cross-examination). It was held that Ed Sheeran did not deliberately or subconsciously copy the OW Hook. Indeed the judge concluded that Ed Sheeran had not heard the song Oh Why.
As previously noted, in this case Ed Sheeran (and his co-authors) commenced the formal legal proceedings for a declaration of non-infringement, following pre-action correspondence in which Sami Chokri and Ross O’Donoghue had alleged copyright infringement and had notified the Performing Rights Society (PRS) of their claim, causing PRS to suspend all payments to the claimants in respect of the public performance/broadcast of Shape of You. The amount of royalties suspended was said to amount to £2,200,000 although Ed Sheeran (and his co-authors) stated they were unaware of the amount of royalties frozen and that their primary intention was to “clear their names”.
Copying
The judge held that there were some similarities between the OI Phrase and the OW Hook, but also important differences.
Moreover, the judge held that the allegations of copying were speculative at best and that the evidence did not suggest to the judge that there had been copying. The allegation that Ed Sheeran had even ever heard or been played the song Oh Why were considered particularly speculative, leading to the judge’s conclusion that Ed Sheeran had not heard the song and therefore could not have copied it either deliberately or subconsciously. Any similarity was merely coincidental. Shape of You was the independent creation of Ed Sheeran, Steven McCutcheon and John McDaid.
As there was held to be no copying, it was not necessary for the judge to consider whether copyright subsisted in the original work or whether a substantial part had been copied. However the Judge expressed his view that the elements of the OW Hook did represent the expression of the intellectual creativity of Sami Chokri and Ross O’Donoghue, but that none of the elements of similarity on which they sought to rely conferred originality on Oh Why as a musical work stating – “The use of the rising minor pentatonic scale is a generic and commonplace building block in many musical genres. … The use of a vocal chant and its harmonisation with low and high octaves are equally generic and commonplace ideas.” The judge also noted that there was no claim to infringement of copyright in the lyrics.
Declaration of non-infringement
Although the conclusion of non-infringement inevitably flows from the judge’s decision, a declaration of non-infringement is a discretionary remedy. In this case, the Judge determined that the amount of money at stake was substantial (which provided commercial justification for declaratory relief), and the risk to the reputations of Ed Sheeran, Steven McCutcheon and John McDaid from accusations of deliberate copying (and in the case of Ed Sheeran the description of him as a “magpie”) further justified the claim for declaratory relief. Accordingly the judge exercised his discretion to grant the declration of non-infringement sought by Ed Sheeran and to dismiss the counterclaim for infringement.
Comment
The decision vindicates Ed Sheeran against the allegations of copying against him, not just specifically in relation to Shape of You but generally. The judge rejected the other sides criticism of Ed Sheeran’s evidence, stating that it was considered Ed Sheeran “was doing his best honestly to assist the court”. In particular, the judge rejected the allegation that Ed Sheeran had a propensity to copy and conceal the music and works of others, stating that the evidence did not support such an allegation and that “On the contrary, the fact that someone is in the habit of openly recognising and crediting the work of others makes it less likely that they would set out to steal the creative work of others.”
This represents a triumph for Ed Sheeran, but also the wider music recording industry generally. Had the judge decided that copyright was infringed in this case it would have further opened the Pandora's box in terms of future perceived musical copyright infringements. The decision may have the effect of reducing the likelihood of more music copyright infringement claims (and make artists alleged to have copied less likely to offer early settlements and more likely to defend their position), particularly in the UK. That said, many will be carefully monitoring the outcome of Taylor Swift's 'Shake it off' case in the US (noted in our previous article) which has the potential to give rise to more claims in relation to lyric-based infringements.'
For more information or advice on music copyright or clearance please contact the author Colin Bell or a member of the Intellectual Property Team.
