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Ed Sheeran has successfully defended a claim for copyright infringement for his song “Shape of You” and was granted a declaration of non-infringement of copyright (Sheeran v Chokri [2022] EWHC 827 (CH)).
The song “Shape of You”, which Ed Sheeran co-wrote and performed, became the best-selling digital song worldwide in 2017.
Sami Chokri co-wrote and performed the song “Oh Why”, which was released in 2015.
In September 2017, Mr Chokri and his co-Defendants contacted Sony/ATV Music Publishing (UK) Ltd claiming that “Shape of You” infringed copyright in “Oh Why”. In May 2018, whilst correspondence between the representatives were ongoing, the Defendants notified the Performing Rights Society Limited of their claim and that they should be credited as songwriters of “Shape of You” causing the suspension of the collection society’s royalty payments for the song. As a result of this, on 16 May 2018, Mr Sheeran and the other Claimants brought a claim seeking a declaration that “Shape of You” had not infringed copyright in “Oh Why”.
The Defendants made a counterclaim for copyright infringement. They argued that the eight-bar chorus of “Oh Why”, in which the phrase “Oh why” is repeated to the tune of the first four notes of the rising minor pentatonic scale, commencing on F# copied the eight-bar post-chorus section of the song “Shape of You”, in which the phrase “Oh I” is sung three times to the tune of the first four notes of the rising minor pentatonic scale commencing on C#.
Copyright is an automatic right that subsists in, among other things, original musical works. Under the Copyright, Designs and Patents Act 1988, copyright in a musical work may be infringed if the work was copied.
In order to amount to an infringement, the copying must be either be a copy of the original work, or a copy of a “substantial part” of the original work.
The test for whether a “substantial part” has been copied has been refined in case law. This is a qualitative question, to which the Defendants argued that the eight-bar section was the “hook” and therefore was a catchy and important part of the song.
In this case, there was no dispute that copyright subsisted in the song “Oh Why”, therefore it was for the Defendants’ to establish that the song had been copied by Mr Sheeran.
When addressing whether the eight-bar section had been copied, Mr Justice Zacaroli considered the following matters raised by the Defendants:
Mr Justice Zacaroli found that the Defendants’ case had focused on three points of similarity between the songs, whilst ignoring the points of difference, the fact that these elements were “common building blocks” in music and the fact that they had been used in many of Mr Sheeran’s other music. Mr Justice Zacaroli concluded that the Defendants had not shown that Mr Sheeran knew of “Oh Why” and that Mr Sheeran did not deliberately or subconsciously copy the eight chords. Therefore, the Defendants’ counterclaim was dismissed and the Claimants’ claim (for a declaration of non-infringement) was able to succeed.
Mr Justice Zacaroli recognised that what inevitably follows from the findings that there had been no copying, was the conclusion that the Claimant’s did not infringe the copyright in “Oh Why”. Nevertheless, he continued to consider whether to grant the declaration for non-infringement under the court’s discretionary power.
Under case law, when assessing whether to grant declaratory relief, the court should consider “justice to the claimant, justice to the defendant, whether the declaration would serve a useful purpose and whether there are any special reasons why or why not the court should grant the declaration”. In this instance, the court rejected the Defendants’ arguments as to why the declaration should not be granted and, due to the suspension of the royalty payments, found that there was a commercial reason for seeking the declaration. Further, Mr Justice Zacaroli commented that this case had been pursued against Mr Sheeran, as he was wrongly perceived as a “magpie” who habitually copies the work of other songwriters. Therefore, the justification for relief was increased by his desire to clear his name. At the court’s discretion, the Claimants were granted the declaration sought.
Interestingly, it would have been open to the Defendants in this case to simply submit to judgment at an early stage, but they decided to ‘double-down’ by counter-claiming for copyright infringement. Presumably, they had strong feelings about the likelihood of Ed Sheeran and his co-claimants copying their song. However, it has been found as a matter of fact that no copying took place. As Mr Justice Zacaroli said, the Defendants may have focussed too much on the points of similarity to the exclusion of the points of difference. The Defendants will now have to bear the consequences of this decision, which is likely to involve a sizeable legal costs bill (theirs as well as the Claimants’).
Mr Justice Zacaroli granted the declaration for non-infringement, even though this had effectively been found by the dismissal of the Defendant’s counterclaim for non-infringement. This declaratory relief was granted in recognition of Mr Sheeran’s desire to clear his name as a songwriter, but also in recognition of the increased risk to his reputation, as a highly successful artist, that false accusations of copying could bring.
The proactive use of the remedy of a discretionary declaration has shown the music industry that Mr Sheeran will take action against claims which attack his reputation and integrity and that those making allegations should beware. As he stated on Instagram: “I hope that this ruling means in the future baseless claims like this can be avoided”.
If you would like to discuss this topic, you can contact a member of our Legal & Litigation team.
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