In 2017 Ed Sheeran released “Shape of You” which was a huge hit resulting in more than 3 billion streams on Spotify and 5.6 billion views on YouTube. However, shortly after the song was released a grime artist called Sami Chokri (performing under the name of Sami Switch) alleged that Ed Sheeran had plagiarised his 2015 song “Oh Why”. In particular, he claimed that the “Oh I” hook in Ed Sheeran’s track was “strikingly similar” to the “Oh Why” hook on his own song. To address these allegations Ed Sheeran sought a declaration from the High Court that there had been no infringement of copyright by him.
Under the Copyright, Designs and Patents Act 1988 for there to be an infringement of copyright there must be either copying of the whole of the original artistic work or a substantial part of it. The infringer not only has to have had access to original artist’s work but to have looked or listened to it and then made a decision to copy it. In terms of music, the fact that the hook on two tracks sound similar is in itself not sufficient to prove infringement.
The Court ruled that there had been no infringement by Ed Sheeran of Sami Chokri’s copyright. The Judge found that Ed Sheeran had not heard “Oh Why” before he created “Shape of You” and that he did not deliberately copy its rift. The Judge said that whilst there were similarities between the two rifts, there were also significant differences. An analysis of the musical elements of the songs and Ed Sheeran’s writing process provided compelling evidence that the “Shape of You” hook originated from sources other than “Oh Why”. The Judge also found that Ed Sheeran had not subconsciously copied “Oh Why”.
This ruling will undoubtedly be welcomed by Ed Sheeran because the Performing Rights Society had withheld royalty payments totalling £2.2m to him and the other credited song writers of “Shape of You” pending the outcome of the case but, perhaps more importantly, it will repair the reputational damage which has been caused to him from the accusation of copyright infringement.
This judgment could have a significant impact on music industry practices relating to plagiarism claims. Songwriters should ensure that the song writing and recording process is clearly documented to show where the ideas came from and how they were developed. In an interview with the BBC’s Newsnight programme after the trial, Ed Sheeran said that he has now started to film all of his creative writing sessions to guard himself against similar claims in the future.
If you are involved in any intellectual property dispute or require advice on intellectual property matters, then Blacks Solicitors can assist. Please contact Luke Patel on 0113 227 9316 or by email at “LPatel@LawBlacks.com”.
