By Lucy Rana and Shilpi Sinha
Ed Sheeran, an English singer-songwriter and the Grammy award winner, wins a copyright battle against another British Grime Artist and songwriter, Sami Switch over his biggest hit ‘Shape of you’. After losing the case, Sami Switch broke his silence and said ‘This is the beginning not the end’.
‘Shape of you’, soon after its release in January 2017 release, hit the stratosphere due to its popularity among music lovers worldwide and had become the worldwide best-selling digital song of the year. In March 2017, this song was included in Ed Sheeran’s third studio album ‘Divide’. It was a top trending song for a considerable length of time on leading music platforms which is evident from the total number of streams and views like Spotify (3+ billion streams), YouTube (5.6 billion views) etc. On the other hand, “Oh Why” was performed by Sami Switch and released in mid-March 2015 and included on Sami’s album “Solace” (released on 1 June 2015).
Case before the High Court of Justice
Edward Christopher Sheeran MBE (a.k.a Ed Sheeran), Steven McCutcheon and John McDaid (co-authors of the song -Shape of You), and Sony/Atv Music Publishing (UK) Limited, Rokstone Music Limited, Polar Patrol Music Limited (three music publishing companies that own a share of the rights in the musical and literary works subsisting in Shape of you) (hereinafter referred to as Claimant no 1-6 chronologically) filed a case before the High Court of Justice, Business and Property Courts of England and Wales against Sami Chokri (who performs under the name Sami Switch), Ross O’Donoghue (co-writers of song Oh Why) and Artists and Company Limited (a music artists’ development, management and social media company and the assignee of copyright in Oh Why) (hereinafter referred to as Defendant no 1-3 chronologically).
The case (no. IL-2018-000095) was filed back in 2018 by all the claimants seeking a declarations that they had not infringed copyright in the song ‘Oh Why’ while creating and exploiting ‘Shape of you’. The defendants filed a counterclaim claiming that the copyright in ‘Oh Why’ has been infringed by the claimants.
The dispute commenced back in September 2017 when the defendants’ former attorneys, over a phone call made to Sony/Atv Music Publishing (UK) Limited, alleged copyright infringement of Oh why and stated that his clients were in the process of taking steps to place ‘Shape’ in suspense at Collecting Societies. The said claims were refused by the claimants’ solicitors. Correspondence continued between the solicitors in this regard.
The defendants’ allegation relates only to an eight-bar post-chorus section of 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#. The defendants refer to this as a “hook”, commonly understood to mean that part of a song that stands out as catchy, memorable and keeps recurring.
The claimants point out that there are other parts of the song which are just as catchy, memorable and recur much more; e.g. the four-bar marimba pattern which starts the song and repeats throughout most of it, or the sung phrase “I’m in love with the shape of you” which defines the song.
Ed Sheeran repudiated all claims of copyright infringement and said that he “always tried to be completely fair” in crediting people who contribute to his albums.
Copying of Music
The main issue that triggered the dispute was ‘copying’, on which the defendants’ counterclaim / case was based. Defendants’ claimed that the writers of Shape of You had access to the earlier song Oh Why of 2015 and made the allegation of copying / reproducing a substantial part only against Ed Sheeran. The other two co-writers were cleared of such allegation after their cross-examination. The copying action of Ed Sheeran was deliberate and conscious/sub-conscious, as alleged by the defendants.
The aforesaid allegations of copying were denied by the Claimants. Secondly, the claimants contended that the elements of Oh Why hook, on which the defendants relied upon, are not original musical work that is protectable under the law. The claimants sought a declaration from the Court confirming non-infringement of the defendants’ Oh Why hook.
The Court addressed the issue of copying on the following four parameters:
- Similarities and differences between the two works and their significance;
- Likelihood of Ed Sheeran having access to Oh Why;
- The alleged propensity to copy and conceal, including similar fact evidence; and
- Criticism made by the defendants of Mr. Sheeran’s evidence and of the three key fingerprints of Mr. Chokri (which the defendants alleged founded in Ed Sheeran’s work).
Observations of the Court
After 11- days long trial, Mr. Justice Antony Zacaroli, concluded the trial in favour of Ed Sheeran stating that “I am satisfied that Mr. Sheeran did not subconsciously copy ‘Oh Why’ in creating ‘Shape of you’.”
He said he has closely examined the song’s musical elements and is of the opinion that there are “compelling evidence that the phrase ‘OI (Oh I)’ originated from sources other than ‘Oh Why'”. “While there are similarities between the ‘OW (Oh Why) Hook’ and the ‘OI (Oh I) Phrase’, there are also significant differences,” the judge concluded.
It was contended that the declaration sought by the claimants falls under the discretionary power of the Court and the same should not be granted as there was no commercial issue and the claim was heavy-handed and premature as the claimants failed to comply with pre-action protocols. With regard the discretionary power, Mr. Justice Antony Zacaroli had no hesitation to reject the objections of the defendants and held that the claimants are entitled to declaratory relief. On the other point of objection, the judge disagreed with the contentions of the defendants.
In his detailed judgement, Mr. Justice Antony Zacaroli had elaborated the reasons for concluding the matter in favour of the claimants. In the concluding para, he stated that none of the points of the defendants dissuade him from exercising his discretionary power to grant relief to the claimants and to dismiss the counterclaim of the defendants.
The judgement can be accessed via the following link: