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Ed Sheeran – oh why?

“Mr Sheeran is undoubtedly very talented, he is a genius. But he is also a magpie. He borrows ideas and throws them into his songs, sometimes he will acknowledge it but sometimes he won’t.” – The words of Andrew Sutcliffe QC, the barrister who is acting for the artist who is suing Ed Sheeran for copyright infringement.

The infringement claim

Ed Sheeran, one of the most popular musicians in the world, stands accused of copyright infringement. The claim relates to his 2017 smash hit Shape of You, the most streamed song in Spotify’s history.

The accuser, Sami Chokri aka Sami Switch, claims that Shape of You infringes his 2015 song Oh Why. The case has significant financial implications – royalties due to Sheeran and his co-writers (some USD20-million) have been frozen.

The hook

In music the term “hook” refers to a short catchy element that is repeated throughout the song. The infringement claim in this case relates to the “Oh I” hook which forms an integral part of Sheeran’s Shape of You, and which is allegedly “strikingly similar” to the “Oh why” hook in Chokri’s song.

The legal proceedings

In 2018 Sheeran launched proceedings asking the court to declare that there had not been any infringement. Chokri counterclaimed for copyright infringement.

Sheeran’s defence to the infringement claim

Sheeran and his team denied ever having heard Oh Why before the claim of infringement was raised. Sheeran went on to allege that the melody is commonplace in pop and, as proof, he sang elements of two other songs, Nina Simone’s Feeling Good and Backstreet’s No Diggity,  in court. Sheeran went on to tell the court that, before releasing Shape of You, he had removed similarities with two other earlier songs (Grandma’s Hands by Bill Withers and No Scrubs by TLC), similarities that had been picked up by a musicologist.

The evidence

Sheeran testified that the disputed hook was “entirely commonplace”, adding: “Even so, if I had heard Oh Why at the time and had referenced it I would have taken steps to clear it…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 song-writing element. This is because I want to treat other songwriters fairly.”

It's not just Ed

It will be interesting to see how the Ed Sheeran case plays out. But Ed is certainly not alone. The highly successful singer Dua Lipa has also been sued for copyright infringement, and in this case the claim relates to her song Levitating, the biggest selling single in the USA last year. The allegation is that it is “highly unlikely that Levitating was created independently.”

Meanwhile, Katy Perry has won an appeal in a case where she had been ordered to pay USD2.8-million to a rapper who claimed that she had stolen an eight-note riff in her song Dark Horse. On appeal, the court held that the riff was not “particularly unique or rare,” adding that the rapper had claimed an “improper monopoly” over “conventional musical building blocks.”

Is the law moving with the times?

In an article that appeared in The Guardian, Hayleigh Bosher, associate dean of IP law at Brunel University, says the law needs to “move with the times.” She adds this: “‘I don’t think copyright is doing its job properly if songwriters are afraid, that’s stifling creativity.” She suggests that there should be two legs to the copyright infringement enquiry: has the songwriter heard the other song before, and have they “substantially lifted a section of it?”

Bosher makes the point that many of the songs that are produced these days rely on a “familiar framework and simple catchy melodies, making accidental copies more likely than in other branches of the arts.” She adds that there is pressure on songwriters from record companies to write songs that imitate others, enabling them to be more easily picked up by Spotify’s algorithms.

South Africa

There aren’t too many juicy music copyright infringement cases in South Africa. But the principles in South African law are very similar to those in the UK. The person alleging infringement needs to prove that there had been copying, and this will be established on a balance of probabilities. The plaintiff will also need to establish that a material part of the song has been copied. The test here relates to quality rather than quantity, so the copying of a very short yet important piece of a song (such as a hook) would certainly be sufficient.

A trial in more ways than one

We’ll end with some words that potential claimants may wish bear in mind. Chokri, the plaintiff in the Ed Sheeran case, has discovered what many before him have discovered – court proceedings are no picnic. Chokri describes the trial as “the most horrible weeks of my life,” adding that if Sheeran had simply dealt with the claim fairly the parties could have avoided “this rubbish.”

André J Maré

Executive | IP