Ed Sheeran has succeeded in the copyright case involving his chart-topping song "Shape of You". The High Court ruled in favour of Sheeran (and his co-Claimants, fellow songwriters and music publishing companies) and granted a declaration of non-infringement of copyright in the song "Oh Why" written by the Defendants, Sami Chokri and Ross O'Donoghue. The case demonstrates that mere similarity to an earlier musical/literary work does not in itself amount to copyright infringement. It must be proven that copying (whether consciously or subconsciously) has occurred. This assessment can be particularly complex in relation to music cases and specifically the genre of pop music (that often features similar melodic attributes), where thousands of new songs are released every day and streamed around the world. Here, the Judge reiterated that the "one-in-a-million" chance of "two unique sounds correlating with one another within the space of months" was no more than a starting point when it came to considering whether one was copied from the other.
Following the favourable judgment, Sheeran has commented that "baseless" copyright claims are having a damaging impact on the songwriting industry. In a video posted on the musician's Instagram page, he highlights that: "there's only so many notes and very few chords used in pop music. Coincidence is bound to happen if 60,000 songs are being released every day on Spotify. That's 22 million songs a year, and there's only 12 notes that are available."
Background
The Defendants had released their song in March 2015. Sheeran's song was released two years later in January 2017 and went on to become the best-selling digital song of the year, worldwide. The Defendants complained to the Performing Rights Society (the "PRS") stating that they should be granted songwriting credits for "Shape of You", on the basis that Sheeran had allegedly copied the eight-bar "Oh Why" chorus in the "Oh I" hook of his song. As a result, the PRS suspended all royalty payments to the Claimants and so, unusually, the case was commenced in 2018 by Sheeran to obtain a declaration that no copyright infringement had occurred. Understandably, in addition to enabling the release of £2,200,000 of suspended royalties by the PRS, the declaration sought was significant from a reputational standpoint. The Defendants counterclaimed that their copyright in "Oh Why" had been infringed.
Decision
The Judge noted and analysed the similarities between the songs. This included discussion around the commonplace nature of the similar elements, and the fact that the evidence indicated that they originated from sources other than the Defendants' song. They were identified as common building blocks in many musical genres and had been used in other parts of Shape of You, along with other Sheeran songs. Further, whilst there were 'obvious similarities' between them, the Judge concluded that there were also 'important differences', such that a finding of copying would be highly unlikely (and no solid evidence of copying was presented either). Crucially, the judge was also not persuaded that Sheeran heard, or feasibly had access to, "Oh Why" - either because someone he was associated with played it to him or because he found it himself - and so he had no means by which to deliberately copy it. The Judge also concluded that subconscious copying had not occurred. The Defendants' counterclaim was therefore dismissed and the declaration of non-infringement was granted to the Claimants.
Much was made during the trial of Sheeran being an alleged 'magpie' (the allegation being that he habitually deliberately copied the works of other songwriters), with the Defendants relying as 'similar fact' evidence on settlements that he had reached following earlier claims. The Court rejected this argument and, when deciding whether to grant the declaration of non-infringement, noted that Sheeran and his co-Claimants were justified in thinking that putting the song into suspense with the PRS was a 'tactic designed to extract a settlement'.