Update: Oh why oh why did Ed Sheeran not infringe copyright?

On Wednesday 6 April 2022, Mr Justice Zacaroli ruled that Ed Sheeran had not infringed copyright in Sam Chokri’s 2015 song “Oh Why” through Sheeran’s use of the “Oh I” phrase in his 2017 blockbuster “Shape of You.”

In our previous blog, we laid out the basis for copyright infringement claims and the principle arguments of this claim, namely similar fact evidence, coincidence and similarity.

Finding in Ed Sheeran’s favour, Mr Justice Zacaroli said that Ed Sheeran had “neither deliberately nor subconsciously copied” the hook from Chokri’s song. Mr Justice Zacaroli said in order for copyright infringement to be found, Chokri would have needed to prove that Sheeran had listened to his song. Mr Justice Zacaroli was not inclined to find copyright infringement, holding that Chokri did not prove Ed Sheeran had heard his song, adding, “I find, as a matter of fact, that he had not heard it” and any similarity was, in fact, a coincidence.

Whilst acknowledging that there were some similarities between the hooks, the Judge emphasised that “such similarities are only a starting point for a possible infringement” and that, if infringement were to be found, the claim would have needed far more compelling evidence to be presented. Analysing the hooks in detail, the Judge found that the hooks play very different roles in their respective songs. Whilst Chokri’s “Oh Why” forms the “central part of the song and reflects the song’s slow, brooding and questioning mood,” Sheeran’s “Oh I” hook is a catchy phrase used to “fill the bar before each repeated ‘I’m in love with your body.’” Therefore, the purpose of each phrase was not similar enough to find copyright infringement on this basis.

Mr Justice Zacaroli further considered the music itself. He found that “the use of the first four notes of the rising minor pentatonic scale for the melody is so short, simple, commonplace and obvious in the context of the rest of the song that it is not credible that Mr Sheeran sought out inspiration from other songs to come up with it.”

As a result of the above, Chokri’s arguments failed and Ed Sheeran successfully obtained a declaration of non-infringement.

Whilst grateful for the outcome of the case, Ed Sheeran released a video on Instagram, musing that “claims like this are way too common” and society is overrun with people who bring claims in the hope that “a settlement will be cheaper than taking it to court, even if there is no case to the claim.”

Going forward, this judgement will provide useful guidance to practitioners and songwriters who are considering copyright infringement claims, because it sets out some of the key factors the court will consider for proving musical copyright infringement. The difficulty with copyright infringement where there is no actual proof of conscious copying is that in each case, it is a question of fact and degree whether the extent of the alleged infringer’s access to the original work, combined with the extent of the similarities, raises a sufficient possibility of copying. For infringement to be found there must be a discrete analysis of numerous components including: the objective similarity of the works, the character of the work particularly its qualities of impressing the mind and memory, the degree of familiarity of the Defendant with the Claimant’s work, the existence of other influences on the Defendant, and a close analysis of the evidence of the Defendant.

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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