Oh why oh why oh why am I accused of copyright infringement? A consideration of musical copyright infringement in light of the Ed Sheeran trial

Ed Sheeran has joined a string of famous faces who have been engaged in Intellectual Property related legal battles in recent years. Sheeran, alongside other artists such as Robin Thicke, Sam Smith and Vanilla Ice have all been accused of copyright infringement in relation to their songs.

The singer and songwriter is currently attending trial in the High Court in London amid his legal battle with Sami Chokri, a grime artist who alleges the “Oh I” hook in Ed Sheeran’s “Shape of You” is “strikingly similar” to his own single “Oh Why”.

When asked about the hooks’ similarities in the courtroom, Sheeran responded by saying “They’re both pentatonic scales and they both use vowels” but aside from that, the hooks are not the same and there has been no copyright infringement on his part.

So, on what basis can copyright be found in relation to music/songs, and how will the court decide whether the hooks are, indeed, “strikingly similar?”

Claiming copyright infringement – a brief overview

Under the Copyright, Designs and Patents Act 1988, copyright can protect various types of “works” including musical works which are recorded in some way (i.e. songs).

The owner of the copyright is the author of the original work. In a typical song, there will often be multiple authors, some having copyrights in the lyrics and some in the music. Songwriters create copyrighted work when they write music and/or lyrics, and then record the music. They work with businesses like music publishers and record labels to commercialise their copyright. Musicians have copyright in their performances.

The main rights an author of an original copyrighted work has are:

• the right to reproduce the work;
• the right to transfer (e.g. assign or license) the work;
• the right to perform or display the work in public, and
• the right to make derivative works based on the underlying work.

These rights can be transferred by the author individually, or in combination.

Copyright is infringed by anyone who carries out any of the copyright owner’s exclusive rights without the permission of the copyright owner, unless one of the limited exceptions applies.

Infringement occurs when ‘the work as a whole or any substantial part of it’ has been copied. The meaning of “substantial” is determined on a qualitative basis, rather than a quantitative one. When assessing copyright infringement in relation to songs, this of course means there is no minimum or maximum length, number of words or notes that need to be the same. As such, the court tends to consider each infringement claim on a case-by-case basis.

Background to the case

Chokri originally claimed that Ed Sheeran had infringed his rights back in 2018, when he lodged a complaint with the PRS for Music, the industry body that collects and distributes royalties in relation to music. The PRS found in Chokri’s favour, and announced they would suspend payment of royalties to Ed Sheeran and his co-writers for “Shape of You”, meaning Sheeran would not receive any money for his song being broadcast or performed.

Later that year, Ed Sheeran and his co-writers issued legal proceedings against Chokri requesting a declaration that there had been no copyright infringement in a bid to defend his reputation as well as resume collecting the royalties.

Chokri launched a counterclaim, alleging that there was indeed an infringement of copyright and claiming damages and account of profits (an equitable remedy which requires the faulting party to surrender the profits made whilst they had infringed copyrights to the innocent party).

The Issues the Court will consider

The trial began on 7 March 2022 and is expected to last three weeks. During this time, the court will have to weigh up a number of issues when considering whether the alleged copyright infringement has taken place, including but not limited to:

1. Similar fact evidence

The concept of similar fact evidence allows the court to admit evidence that does not directly implicate the accused in the offence charged but suggests, either directly or indirectly, that he has committed one or more other offences.

The test for whether similar fact evidence will be admitted to court was established in the case of O’Brien v Chief Constable of South Wales Police [2005] 2 AC 534. In this case, the court said they must first consider if the similar fact evidence is potentially probative (i.e. relevant) to one of more of the issues at hand and, if so, whether there are good grounds for the court to refuse admitting the evidence.

When this issue was first heard before the court, the master refused to strike out similar act allegations, and ordered they were admissible in relation to this case. Ed Sheeran appealed but this appeal was dismissed.

Chokri is therefore relying upon other instances whereby Ed Sheeran has been accused of copyright infringement in relation to other artists’ songs:

• “Strip That Down” which Ed Sheeran co-wrote became the subject of a copyright dispute and whereby the creators “It Wasn’t Me”, now receive a share of the PRS royalties;
• “Shape of You” has had previous allegations made against it with the writers of the song “No Scrubs” and those writers now appear as co-authors and receive a 15% share of the PRS royalties;
• Ed Sheeran’s song “Photograph” and a song called “Amazing”, though this matter was settled out of court, resulting in 35% of the PRS royalties going to the writers of that song.

Ed Sheeran continues to deny the allegations that he “borrows” ideas from songwriters without credit.

2. Coincidence

Chokri’s lawyer said Ed Sheeran has “an echo chamber in his mind” – full of words and melodies –which he believes he then borrows from in his work. He continued to say to Ed Sheeran that it was possible he had come across Chokri’s song before writing “Shape of You” but could not remember hearing it.

Ed Sheeran said this was not possible as, whilst he has forgotten songs he has written in the past, he has not forgotten ones he has heard.

Following this questioning, Chokri’s lawyer told the court “there is a middle ground between stealing and coincidence.”

Copyright infringement does not require knowledge but, the threshold for proving subconscious copying is far higher than that for knowledgeable copying.

3. Not “strikingly similar”

In his written evidence, Ed Sheeran said the use of “minor pentatonic pattern” is “very common” amongst artists and that, broken down, there would be many instances of similar melodies and/or rhythms in the music world. He stated that if various songs were sang in the same key, they would all sound the same. To illustrate his point, Ed Sheeran sang his own songs “I See Fire” and “Shape of You”, Nina Simone’s “Feeling Good”, and Blackstreet’s “No Diggity” to the courtroom.

Chokri continues to claim the hook is strikingly similar to his own song, and that infringement should be found.

These are just a few of the issues the court will consider when determining whether Ed Sheeran has infringed Chokri’s copyright.

Conclusion

In an age where music is evermore present in our everyday lives, whether it be on the television, in adverts or even in podcasts, generating millions from sales of physical CDs, vinyl and streaming royalties, it seems the question of whether copyright has been infringed will continue to be a hot topic of disputes, some of which will set important precedents in court.

If you have any questions or would like to discuss this topic further, please contact any member of the Intellectual Property team.

 

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