“There’s only so many notes and very few chords used in pop music — coincidence is bound to happen if 60,000 songs are being released every day on Spotify,” After the landmark ruling Ed Sheeran took to Twitter. “That’s 22 million songs a year, and there’s only 12 notes that are available.”
Why Ed Sheeran sued Sami Chokri?
- Four times Grammy Awards winning singer Ed Sheeran, his co-writers, John McDaid and producer Steven McCutcheon, Sony Music UK, Rockstone and Pollar Patrol Music, in May 2018, filed a case in the UK’s High Court against Sami Chokri (aka Sami Switch) another British artist, seeking a declaration of non-infringement of copyright over his smash hit "Shape of you".
- Chokri had ealier complained to the Performing Rights Society Limited ("PRS") that they should be credited as songwriters of "Shape of you", accusing Sheeran and his team of stealing the melody of his 2015 song "Oh Why".
Here's Sami Switch's "Oh Why".
- "Shape of you" went on record as the biggest-selling song in the U.K singles charts in 2017 and it is the first song to cross 3 billion streams on Spotify with over a 5.6 billion Youtube views.
What was at stake?
- The issue lying at the heart of this case was the act of copying; whether Ed actually, consciously or subconsciously copied and reproduced a substantial part of Chokri’s "Oh Why" in some material form
- Section 17(2) of Copyright, Designs and Patents Act 1988 ("CDPA") provides that copying a musical or artistic work means reproducing the work in any material form.
- Section 16(3)(a) of CDPA states that acts restricted by a copyright in a work are to the doing of it:
(a) in relation to the work as a whole or any substantial part thereof, and
(b) either directly or indirectly.
What exactly did Ed copy?
- The alleged similarity is in the eight-bar post-chorus of "Shape of you" in which Ed sings the catchy phrase "Oh I".
- The defendants argue that this Oh I phrase is copied from the phrase 'oh why' in their song "Oh Why" and it is similarly vocalized.
In copyright claims, who has the burden of proof?
- Generally the legal burden rests with the person alleging infringement.
- In a case of conscious copying backed by proof of sufficient similarity and proof of access, the evidential burden shifts to the alleged infringer.
How did defense argue its case?
Andrew Sutcliffe QC who appeared
for Chokri relied defense case mostly on three grounds.
·
The extent of similarity
between the two musical works;
·
The fact that Ed had
prior access to "Oh Why"; and
·
Ed’s propensity to copy
and interpolate from other artists.
Similarity
There are both significant similarities and noticeable
differences between the musical designs of the two songs.
- Despite both songs have a similar rhythmic feel, "Oh Why" has a more of a bleak mood running throughout whereas Ed’s "Shape" is more of an upbeat song with a dance feel.
- The melodies of both songs sound similar as they both use a minor pentatonic scale structure.
- Chokri’s "Oh Why" is sung to the tune of the first four notes of the rising minor pentatonic scale, commencing on F#, while "Shape of you" is sung to the tune of the first four notes of the rising minor pentatonic scale commencing on C#.
- "Oh Why" starts off the beat with a quaver rest and therefore has only seven notes. 'Oh I' in "Shape" begins on the beat and has 8 notes.
- Moreover, 'Oh I' in "Shape" is fast and bright and not stressed like 'oh why' which is emphasized a lot with a questioning mood.
Though the refrain "Oh I " in "Shape" has an indisputable similarity to "Oh Why", these similarities are very generic in nature. They are insufficient to show the use of similar melody and similar notes to amount to a copyright infringement.
Lord Millett in Designers Guild v Russell
Williams [2000] 1 WLR 2416 observed as follows:
"The first step in an action for infringement of artistic copyright is to identify those features of the defendant's design which the plaintiff alleges have been copied from the copyright work. The court undertakes a visual comparison of the two designs, noting the similarities and the differences. The purpose of the examination is not to see whether the overall appearance of the two designs is similar, but to judge whether the particular similarities relied on are sufficiently close, numerous or extensive to be more likely to be the result of copying than of coincidence. It is at this stage that similarities may be disregarded because they are commonplace, unoriginal, or consist of general ideas."
Access to the original work
- Defense argued that it is extremely likely that Ed had access to "Oh Why" through a number of channels before he wrote "Shape of you".
- Sheeran denied that he had ever heard "Oh Why" track before he made "Shape of you" and it was just a coincidence that a part of the melody in the two songs bore a similarity.
- Claimants argued that the defense has failed to establish a highly individualistic originality of the phrase 'oh why' and therefore Chokri cannot show intellectual property rights to the phrase 'oh why'.
- To constitute copyright infringement the copying must be from elements of some original work of creation. Vide Newspaper Licensing Agency Ltd v Meltwater Holding BV [2011] EWCA Civ 890, Infopaq International A/S v Danske Dagblades Forening [2009] ECDR 16, Mitchell v BBC [2011] EWPCC 42.
Propensity to copy
- In an attempt to bolster defense case with similar fact evidence, the defense portrayed Ed as a magpie who has a bad habit of pirating other artists’ work.
- In 2017 Ed settled a similar copyright claim made against his song Photograph, opening floodgates for frivolous lawsuits. There were other similar copyright allegations including the one over Strip That Down a song Ed co-wrote for Liam Payne which had reference to Shaggy’s It Wasn't Me. Ed is also being sued for a reported $100m copyright claim over his 2014 chart-topper Thinking Out Loud.
- In Mood Music Publishing Co v De Wolfe Ltd [1970] 1 Ch 119, Lord Denning MR observed that;
- Sheeran denied the allegations that
he ever "borrowed" ideas from unknown songwriters without acknowledgement
and said he has always been fair in crediting people who contribute to his
albums. Ed Sheeran also reminded of how
he generously shared writing credits with writers
of TLC’s No Scrubs after his fans and critics speculated the song
to be perfectly fitting over the chorus of "Shape of you".
The judgment
- The U.K. High Court handed down the judgment in Ed’s favor that the he and his collaborators had not in any way plagiarized Chokri’s ‘oh why’ and had neither deliberately nor subconsciously" appropriated a phrase from "Oh Why”.
- Judge Zacaroli noted that a close examination of the musical elements in the two songs would provide compelling evidence that this phrase 'oh I'/'oh why' is commonplace in music and is therefore not a protectable unique creation of Chokri. The phrase has different origins other than Chokri’s "Oh Why".
- Responding to defence claim that Ed is likely to have previously heard "Oh Why" before he wrote "Shape", judge commented that this claim does not have probative value and has only a mere speculative foundation.
"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 Sheeran sought out inspiration from other songs to come up with it".
- To successfully argue a copyright claim, in addition to pinning down on points of sufficient degree of similarity, party who alleges infringement must be able to prove infringer’s access to the original work (not possibility of access). That is to prove that the infringer actually saw or heard it. Actual copying (consciously or subconsciously) is a prerequisite to infringement.
How did Ed Sheeran react to the ruling?
- Following the court victory Ed tweeted about the prevalent tendencies in the music industry to reach settlements owing to fears over resultant mental health and emotional stress, and other non-financial cost such as damage to reputation and creativity associated with litigation. Even when the cases are manifestly made on baseless claims artists tend to settle.
- Sheeran said in his interview with BBC News night that all of this four year long drawn out court drama made him sad and his choice to go ahead with litigation was for reasons of honesty and out of a sense of principles and he did not eye on money. And he was left with no other choice but to defend his work.
Watch Ed’s full interview with BBC News Night here:
- Ed also decried the culture of bogus copyright claims which has become way too common in the music industry.
"Whilst we're obviously happy with the result, I feel like claims like this are way too common now and have become a culture where a claim is made with the idea that a settlement will be cheaper than taking it to court, even if there is no basis for the claim," Sheerhan said in a video posted on Twitter. "It's really damaging to the songwriting industry."
"I hope that this ruling means in the future baseless claims like this can be avoided". Sheeran also wrote on his Instagram.
How has copyright law evolved over time?
- Not long ago, copyright laws used to protect only lyrics and melodies, but now the stakes are unacceptably high.
- Modern day copyright infringement covers even the general feel, tempo and rhythm of songs.
- With the ridiculous expansion of the scope of copyright laws, there is a boom in copyright infringement claims, making it harder for song writers to express themselves freely. The risk of facing claims has forced artists to constantly check their musical work to match a tyrannical copyright system meant to ward off plagiarism.
- To counter this problem, artists have now turned to retaining the services of on-call musicologists and some have even considered insuring their work to avoid losing big money on copyright battles.
- It is hoped that the recent ruling in Sheeran v Chokri [2022] EWHC 827 (Ch) may herald an end to detrimental and regressive practice of suing A-list musicians by lesser-known artists for money.
Nice article
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