Ed Sheeran: the judgment

We have discussed the case of Ed Sheeran vs Sam Chokri before. The issue was whether Sheeran had, in his best-selling song Shape of You, infringed Chokri’s copyright in a song called Oh Why – more particularly the claim was that Sheeran’s short “Oh I” hook, was a copy of Chokri’s “O Why” hook. Judge Zacaroli’s judgment came out on 6 April 2022.

Copyright basics

The judge said that copyright subsists in original works. Infringement occurs by “reproducing the work in any material form” without authority. The copying must cover a ‘substantial part’.” The test is qualitative, not quantitative.

The court will consider whether the similarities are “more likely to be the result of copying than of coincidence.” With music, “it is the sounds that are more important than the notes.” The evidential burden shifts to the alleged infringer if there is both “sufficient similarity and proof of access.” There must have been actual copying, mere access is not enough.

Copying

There were similarities between the two hooks, but also important differences – one interesting difference highlighted was the fact that the “mood of the two phrases is markedly different.” The mood of Oh Why is ”low, dark, questioning”, whereas “Oh I” is “faster, brighter and more upbeat.”

The evolution of the “Oh I” phrase

This was much-debated, especially as Sheeran, at one stage during the song-writing process, said to his co-writers that “it might be a bit close to the bone”. Chokri claimed this proved copying from Oh Why. But the judge disagreed, saying that there was no evidence that the comment was intended as a reference to Oh Why. If anything, it related to another song called No Diggity, a song Sheeran knew well.

The judge rejected the claim that Sheeran could not have written the song from scratch in the very short period in which it was written. Sheeran, he said, has “a rare ability to come up with lyrical and melodic ideas and connect them together to create catchy songs, at rare speed.”

The judge rejected the suggestion that Sheeran and his co-writers had “failed to explain adequately how the song was written… the fact that they do not have a clear or consistent recollection of who came up with particular phrases… is not surprising, and is no cause for suspicion.”

Access

There was much emphasis on the issue of whether Sheeran had ever heard Oh Why. Sheeran and his co-writers testified that they had never heard the song nor of Chokri, and the evidence showed that the song had had very little exposure.

A bizarre aspect of the case was the fact that in 2017, Chokri posted this on Facebook: “Anyone else think ed sheerans new song ‘shape of you’ chorus sounds familiar lol?” Chokri claimed that shortly after he posted this an associate of Sheeran’s, Jamal Edwards, posted a “shifting eyes” emoji in response. Chokri suggested that this signified agreement by Edwards that there had been copying. But Edwards, who died before the hearing, signed a witness statement from which the judge concluded that Oh Why “was not shared with Mr Sheeran by Mr Edwards at any time.”

Similar fact evidence

Much was made of Sheeran’s alleged propensity to copy (and credit) others. But the judge did not accept the submission “that a person who copies music– even if this is done without permission – is ‘self evidently’ more likely to copy without permission than a person who does not copy at all. 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.”

Dealing with the claim that the chorus in another Sheeran song, Photograph, is similar to a song called Amazing (Matt Cardle), the judge said this: “I reject the contention that Mr Sheeran deliberately copied Amazing when co-writing Photograph…and that it therefore provides any reason to suppose that he deliberately copied Oh Why when co-writing Shape.”

Chokri even claimed that Sheeran has boasted of his copying in a song, and that this established a propensity to copy. The lyrics: “I’m not a rapper, I’m a singer with a flow, I’ve got a habit of spitting quicker lyrics you know, You found me ripping the writtens out of pages they sit it, I never want to get bitten because plagiarism is hidden.” The judge said that this was irrelevant.

In conclusion

The judge was clearly impressed with Sheeran, saying that he “presented his evidence straightforwardly and honestly, and in an attempt to assist the court.” We’ll end with these words from the judgment:

“The use of the first four notes of the rising 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.”

André J Maré

Executive | IP

amare@ENSafrica.com