The High Court has handed down its judgment in the case of Sheeran & Ors v Chokri & Ors, a copyright infringement case raised by singer-songwriter Ed Sheeran. Judge Zacaroli found in favour of Ed Sheeran’s claim that his record-breaking 2017 song ‘Shape of You’ did not infringe Sami Chokri’s and Ross O’Donoghue’s 2015 song ‘Oh Why’.

How are songs protected under UK copyright?

The first stage of considering a copyright infringement claim is ascertaining that there is in fact an established copyright in place. Under UK law, the literary and musical intellectual property of songwriters is protected by the Copyright, Design and Patents Act 1988. This ensures that a songwriter, as the author of the original work, will own and control the rights to their work. These rights subsist for their lifetime and a further 70 years after death.

Copyright would therefore be infringed in this case if Ed Sheeran had copied the defendants’ “work as a whole or any substantial part of it” without their permission.

This was the argument advanced by the defendants, who contended that Sheeran had either deliberately or subconsciously copied from ‘Oh Why’ when he wrote ‘Shape of You’. Specifically, they were concerned about the similarities between Sheeran’s “Oh I” hook and their “Oh Why” hook.

A question of fact

Proving that Sheeran had heard this song was therefore key, for either the primary claim of deliberate copyright or for the second claim of subconscious copyright to succeed. This was a question of fact which had to be decided by the judge. The defendants put forward a number of arguments in this respect, claiming that Sheeran was a “follower of the UK scene”, and that the track had been passed to Sheeran through industry contracts. Sheeran denied this, and also denied that he had heard the song and forgotten it (which was the argument advanced in respect of subconscious copyright), stating that he never forgets hearing a song.

The judge found these arguments to be too speculative, and therefore as a matter of fact found that Sheeran had not heard the song. This highlights the difficulties artists can face when proving subconscious copyright infringement.

What is the test for copyright infringement?

Despite acknowledging similarities between the two songs, the judge pointed out that such similarities are only the starting point for a claim of copyright infringement. The test for copyright infringement is qualitative, not quantitative, and there is no set rule as to how similar two pieces of work need to be for the latter of these to constitute infringement.

The judge found that, listening to the songs as a whole, the two phrases play very different roles in their respective songs. In particular, he pointed to the “stark contrast between the dark mood created by the ‘Oh Why’ hook in ‘Oh Why’, and the upbeat, dance feel that Mr Sheeran was looking to create with ‘Shape of You’.” He also stated that the use of the particular notes 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 inspirations from other songs to come up with it.”

Making a habit of it?

Interestingly, similar fact evidence was allowed to be submitted in this case. This meant that, when considering all of the evidence, the judge could have regard to the fact that Sheeran had settled copyright claims in the past. In 2017, the singer settled with the writers of TLC’s song ‘No Scrubs’ on the advice of US lawyers. They now appear as co-authors of the track and receive a 15% share of the royalties.

In Sheeran & Ors v Chokri & Ors, the defendants contended that this settlement supported their argument that the claimants were in the habit of either consciously or subconsciously copying the work of others. The judge, on the other hand, opined that from an English law perspective there are insufficient similarities between ‘Shape of You’ and ‘No Scrubs’ for a copyright infringement claim to have succeeded. Therefore, this evidence did not support the defendant’s claim that Sheeran was in the habit of copying the work of others.

Implications

Following this judgment, Sheeran released a statement in which he pointed out that “coincidence is bound to happen if 60,000 songs are being released every day on Spotify. That’s 22 million songs a year and there’s only 12 notes that are available.” This has led to some within the music industry expressing concern that copyright law is not keeping up with the pace of technological change, with Sheeran revealing that he now films his songwriting sessions as a precaution.

Given the potential number of claims in this realm, the music industry will likely be breathing a sigh of relief following this ruling. It provides valuable guidance to potential claimants on the factors that a court will assess when considering a copyright infringement claim. Whether this will deter copyright infringement claims in the future remains to be seen.