Ed Sheeran successfully defends hit song ‘Shape Of You’ against High Court copyright infringement claim

The UK musician, Ed Sheeran, one of the world’s best selling artists with sales of 26 million albums and 100 million singles worldwide, has successfully defended a claim brought against him for copyright infringement.

In 2017, Ed Sheeran released the song ‘Shape of You’, which is one of the most streamed songs on Spotify with over 3 billion streams. The musician Sam Chokri (who performs under the name Sami Switch) and song writer, Ross O’Donoghue, wrote to Sheeran, claiming that elements of ‘Shape of You’ were stolen from Chokri’s 2015 song ‘Oh Why’, and that the ‘hook’ from Shape of You was “strikingly similar” to a section from Oh Why.

Initially Sheeran applied to the court for a non-infringement declaration. Chokri and O’Donoghue then counterclaimed with a claim for copyright infringement.

Sheeran denied that he had copied the song, and refuted allegations by Chokri’s barrister, Andrew Sutcliffe QC that he was a “magpie” who has copied songs from other artists on numerous other occasions.

Judgment

Mr Justice Zacaroli, handing down his judgment on 6th April 2022, found that although there were similarities between the songs, this did not prove copyright infringement and that arguments that Sheeran had heard Chokri’s song before writing ‘Shape of You’ were only speculative.

In reaching his verdict, Justice Zacaroli stated;

• Coincidences in songwriting are not uncommon and that the ‘the evidence of similarities and access [was] insufficient to shift the evidential burden so far as deliberate copying is concerned to [Sheeran]’
• Even if the evidential burden had shifted to Sheeran and the other co-claimants, it had been established that Mr Sheeran did not deliberately or subconsciously copy the phrase in his song from the hook in Chokri’s song

Zacaroli also noted the following in relation to the phrasing used on the songs;

“The two phrases play very different roles in their respective songs. The OW Hook (in ‘Oh Why’) is the central part of the song and reflects the song’s slow, brooding and questioning mood. 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.”

Evidence of copying

In a copyright infringement case, a copyright owner must also prove that the defendant had heard the original work, in order to be able to successfully prove copying, and therefore the fact that copyright infringement has taken place. Although Chokri’s song was widely available, and Mr Chokri argued that he moved in similar circles to Ed Sheeran in the UK music scene and that he had sent his song to people closely associated with Ed Sheeran, he could not produce clear evidence that Sheeran had heard his song before writing ‘Shape of You’.

Lessons for businesses and individuals

An important lesson from this case is that businesses and individuals should document their creative or product development procedures, ensuring that copies of design documents are dated and kept safe, emails are archived and any agreements with third parties working on matters such as consultants are carefully stored away.

This is to ensure that, should a claim for infringement of an intellectual property right such as copyright be brought against yourself or your company, you can prove where an idea originated from and you can demonstrate the process through which this is created in order to refute any such arguments.

As an example of this in practice, following the case discussed above, Ed Sheeran has stated that he now films all of his songwriting sessions, in order to protect against future claims. Documenting any work in this way may save a great deal of time and costs in responding to any potential litigation that may arise in future.

This article was prepared by HGF Senior IP Solicitor Chris Robinson.