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Ed Sheeran wins Shape of You High Court copyright battle

Out-Law News | 07 Apr 2022 | 10:12 am | 2 min. read

Ed Sheeran has criticised a fellow musician’s "baseless" copyright claim after a High Court judge in England ruled that he had not plagiarised the 2015 song Oh Why by Sami Chokri.

Gill Dennis, copyright and brand protection expert at Pinsent Masons, said: “Copyright infringement claims can be very difficult to make out because of the need to show copying, and hard evidence of that can be problematic to find.”

Lawyers for Sam Chokri and his Oh Why co-writer Ross O'Donoghue had argued that the ‘hook’ of Sheeran’s 2017 hit single Shape of You, which stayed at number one for 14 weeks in the UK, was “strikingly similar” to a section of their song, released by Chokri under the name Sami Switch. Andrew Sutcliffe QC, called Sheeran a "magpie" and said the singer "habitually copies" other artists. Sutcliffe argued that it was "extremely likely" Sheeran had previously heard Oh Why.

But Sheeran denied copying Chokri and O’Donoghue’s work and maintained that he does not treat less prominent songwriters differently from famous ones. Under cross examination during the 11-day trial last month, Sheeran told the court that he has often shared credit with lesser-known artists, even acknowledging the work of an “unknown composer” whose music Sheeran sampled from an episode of Buffy the Vampire Slayer.

Handing down his judgement, Mr Justice Zacaroli said Sheeran had "neither deliberately nor subconsciously copied" Chokri's song. While he acknowledged there were "similarities between the one-bar phrase" in Shape of You and Oh Why, he said "such similarities are only a starting point for a possible infringement" of copyright.

The judge said there was “compelling evidence” that the “Oh I” phrase in Shape of You’s hook "originated from sources other than Oh Why". He added that there was only a "speculative foundation" for the claim that Sheeran had heard Chokri's song before writing his own.

“A claimant must not only show similarities between the two works but also that the defendant had seen or heard the original work, because without that there can be no copying,” said Dennis. “Today’s judgment shows that establishing prior access to the work is far from straightforward. Sam Chokri was unable to satisfy the judge that Ed Sheeran had previously heard his song, despite it being freely and widely available on a variety of popular music platforms.” 

In a video posted on Instagram after the judgment, Sheeran said “baseless” copyright claims were “all too common” and that there was now a culture "where a claim is made with the idea that a settlement will be cheaper than taking it to court, even if there's no basis for the claim".

He added: "It's really damaging to the songwriting industry. 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."