Ed Sheeran condemns ‘damaging’ culture of legal claims after copyright victory
The singer and his Shape Of Your co-writers had been accused of ripping off the song Oh Why by Sami Chokri and Ross O’Donoghue.
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Ed Sheeran has hit out at a “damaging” culture of “unwarranted” legal claims against songwriters after winning a High Court copyright battle over his track Shape Of You.
The singer said legal challenges are “way too common”, as a judge ruled his 2017 hit did not infringe another artist’s song.
Sheeran and his Shape Of You co-writers, Snow Patrol’s John McDaid and producer Steven McCutcheon, had faced accusations they ripped off 2015 song Oh Why by Sami Chokri and Ross O’Donoghue.
Giving a ruling on Wednesday, Mr Justice Zacaroli concluded Sheeran “neither deliberately nor subconsciously” copied a phrase from Oh Why when writing Shape Of You.
The judge said arguments that Sheeran had previously heard Oh Why were “speculative”, and he rejected allegations the star is a “magpie” who “habitually deliberately copies and conceals the work of other songwriters”.
Sheeran and his co-authors originally launched legal proceedings in May 2018, asking the High Court to declare they had not infringed Chokri and O’Donoghue’s copyright.
Two months later, Chokri – a grime artist who performs under the name Sami Switch – and O’Donoghue issued their own claim for “copyright infringement, damages and an account of profits in relation to the alleged infringement”.
The pair alleged an “Oh I” hook in Shape Of You is “strikingly similar” to an “Oh Why” refrain in their own track.
All three Shape Of You co-authors denied allegations of copying and said they did not remember hearing Oh Why before the legal fight.
Mr Justice Zacaroli dismissed Chokri’s counterclaim on Wednesday and granted a declaration to Sheeran and his fellow songwriters that they had not infringed the copyright in Oh Why.
In a video message after the ruling, Sheeran said: “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, and it’s really damaging to the songwriting industry.
“Lawsuits are not a pleasant experience and I hope with this ruling it means in the future baseless claims like this can be avoided. This really does have to end.”
In a separate joint statement with his fellow co-writers, Sheeran detailed the cost on “creativity” their case had, as well as the toll on their mental health.
They added: “We believe that there should be due process for legitimate and warranted copyright protection.
“However, that is not the same as having a culture where unwarranted claims are easily brought. This is not constructive or conducive to a culture of creativity.”
In his ruling, Mr Justice Zacaroli said his analysis of the musical elements of Shape Of You and its writing process “provide compelling evidence that the Oh I phrase originated from sources other than Oh Why”.
He said while there are “similarities” between the two songs hooks, there are also “significant differences”.
The judge said the songs’ phrases “play very different roles”, with the Oh Why hook reflecting the track’s “slow, brooding and questioning mood”, while Shape Of You’s Oh I phrase was “something catchy to fill the bar” before the next part of the song.
He continued: “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 Mr Sheeran sought out inspiration from other songs to come up with it.”
The judge said Sheeran, McCutcheon and McDaid were “unaware” the dispute had frozen £2.2 million in royalties from their song and had said they were only in court to “clear their names”.
However, he said that is a “substantial amount of money” and “provides a commercial justification” for making a declaration.
Isaac Murdy, intellectual property specialist at law firm Shakespeare Martineau, said: “This ruling indicates that the UK intellectual property courts aren’t going to support American-style speculative litigation.”
Gill Dennis, copyright and brand protection expert at Pinsent Masons, said copyright infringement proceedings are “notoriously challenging to succeed in”, highlighting a claimant “must prove, with hard evidence, that the defendant had access to the song in order to copy it”.
During the 11-day trial at the Rolls Building in London last month, Sheeran denied he “borrows” ideas from unknown songwriters without acknowledgement and insisted he “always tried to be completely fair” in crediting people who contribute to his albums.
He also denied using litigation to “intimidate” Chokri and O’Donoghue into abandoning the copyright dispute.
Chokri told the trial he felt “robbed” by Sheeran and was “shocked” when he first heard Shape Of You on the radio.
Ian Mill QC, for Sheeran, McDaid and McCutcheon, said the allegations against them were “impossible to hold”, with the evidence pointing to Shape Of You being an “independent creation”.
Sheeran was present throughout the trial and frequently burst into song and hummed musical scales and melodies when he took to the witness stand.
The Oh Why co-writers’ lawyer, Andrew Sutcliffe QC, alleged Sheeran is an artist who “alters” words and music belonging to others to “pass as original”.
It was also claimed Sheeran must have been aware of Chokri because they appeared on YouTube channel SBTV at about the same time, they shared friends, Chokri had sent messages to him on Twitter, and Sheeran had allegedly shouted his name at a performance.
Mr Sutcliffe suggested Sheeran “consciously or unconsciously” had Oh Why in his head when Shape Of You was written at McCutcheon’s Rokstone Studios in west London in October 2016.
But Mr Mill said the Shape Of You co-writers were clear they had “no preconceived ideas” when they went into the studio.
Musicology experts gave contrasting views at the trial over whether Shape Of You has “significant similarities” or is “distinctively different” from Oh Why.
Mr Sutcliffe alleged Sheeran’s lawyers brought the legal proceedings because PRS for Music – the industry body that collects and distributes royalties – had “frozen” payments for UK broadcast and performance income from Shape Of You.
But the judge ruled the Shape Of You co-writers were justified in thinking the PRS suspension was “a tactic designed to extract a settlement”.
Shape Of You was a worldwide hit, becoming the best-selling song of 2017 in the UK and the most streamed track in Spotify’s history.
Oh Why was played on the radio only twice and attempts to publicise it on social media did not have “any material success”, the judge said, adding there was no evidence the track and its video was ever played or shown by anyone to Sheeran.