Proving copying in Ed Sheeran case will be challenging

Out-Law News | 16 Mar 2022 | 9:54 am | 1 min. read

Similarities identified in parts of Ed Sheeran’s 2017 song Shape of You and a track produced by two lesser-known artists are “not necessarily evidence of copying”, according to one intellectual property expert.

Lawyers for Sami Chokri and Ross O'Donoghue told the High Court in London that the ‘hook’ of Sheeran’s hit single, which stayed at number one for 14 weeks in the UK, was “strikingly similar” to a section of their song Oh Why, which was released by Chokri under the name Sami Switch in 2015.

Sheeran denies copying Chokri and O’Donoghue’s work, and told the court he does not treat less prominent songwriters differently from famous ones. He said 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.

Iain Connor of Pinsent Masons said: “Cases such as these are nothing new – if we could ask George Harrison, he’d tell us all about his 1971 US billboard number one song My Sweet Lord. Harrison lost the claim on the basis that he had ‘subconsciously’ copied a Chiffons song called He’s So Fine. Harrison was forced to pay more than $1 million in the subsequent court case – that’s over $7m today when adjusted for inflation.”

But, Connor said, even when similarities between two songs can be identified, that fact “is not necessarily evidence” of copying. “A recent claim against Led Zeppelin by Spirit in respect of its song Taurus - parts of which were allegedly used to form the opening chords of the iconic track Stairway to Heaven - failed when musicologists testified that the descending musical pattern shared by both songs had been a common musical device for centuries,” he added.

Connor said that the challenge faced by someone claiming breach of music copyright was to demonstrate that the alleged copier had access to a song in order to copy it. “This is because, as the name suggests, copyright is designed to prevent the unlawful copying of a work. It does not give the copyright owner the right to stop another musician independently creating a song that is similar - or even identical.”

Lawyers for Chokri and O'Donoghue told the court that Sheeran could have become aware of their song Oh Why after Chokri appeared on the YouTube channel SBTV, then hosted by Sheeran’s “best friend” Jamal Edwards. But Sheeran said he did not discuss music with Edwards.

Sheeran denied becoming aware of Oh Why and its creators through his work scouting talent for his record label, Gingerbread Man Records. The 31-year-old told the court that in 2016 he signed Jamie Lawson to the label and was not looking for others to collaborate with.