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Ed Sheeran testifies in Shape Of You song-theft dispute

By Chris Cooke | Published on Tuesday 8 March 2022

Ed Sheeran said in the high court yesterday that – while he is influenced by other songs when writing his own music – he is not a “magpie” that routinely lifts elements of those existing songs without permission. And where one of his songs does arguably share a musical element with an existing work, he goes out of his way to clear and credit the original.

Meanwhile, he settled an earlier song-theft lawsuit over his song ‘Photograph’ out of court not because he thought he was liable for copyright infringement, but because he was advised it was the easiest way to move beyond that particular dispute.

All of this was said as the musician gave testimony as part of the song-theft legal battle in the UK courts over his song ‘Shape Of You’. He and is collaborators are accused of ripping off the earlier track ‘Oh Why’ by Sami Chokri and Ross O’Donoghue when they wrote their 2017 hit.

It was the lawyer repping Chokri and O’Donoghue – Andrew Sutcliffe – who dubbed Sheeran a musical “magpie” as this case got underway on Friday. “Ed Sheeran is undeniably very talented”, he said. “He is a genius. But he is also a magpie. He borrows ideas and throws them into his songs”.

The legal man then argued that whenever Sheeran borrows from famous songs by famous writers he cuts a deal with the people behind the earlier work, noting that such a deal was done in relation to ‘Shape Of You’ with the writers of TLC’s 1999 hit ‘No Scrubs’. However, when the musician borrows from lesser known songs by lesser known artists, he is much less likely to acknowledge the borrowing and do the deal.

Responding to those claims, Sheeran conceded that he – like any songwriter – is influenced by earlier works. However, he argued, he goes out of his way to be fair to other songwriters, however famous they may or may not be.

According to the BBC, Sheeran said: “I have always tried to be completely fair in crediting anyone who makes any contribution to any song I write. I do refer to other works on occasion when I write, as do many songwriters. If there is a reference to another work, I notify my team so that steps can be taken to obtain clearance”.

“I have been as scrupulous as I possibly can and have even given credits to people who I believe may have been no more than a mere influence for a songwriting element”, he went on. “This is because I want to treat other songwriters fairly”.

And that includes giving credit to lesser-known artists and songwriters, he added. He shared credit with lesser-known acts like Shivers and Visiting Hours, he said, and he’d acknowledged an “unknown composer’s” work from ‘Buffy The Vampire Slayer’. “All those examples are not famous artists that we’ve cleared songs with and that’s what I have to say on that”, he concluded.

The Sheeran side has insisted throughout this dispute that neither he nor his collaborators have any recollection of hearing ‘Oh Why’ before writing ‘Shape Of You’. They also argue that the contested part of Sheeran’s hit is “very short” and that the elements shared by the two songs are “entirely commonplace”.

During yesterday’s hearing, Sheeran also discussed his creative process which – he argued – had changed over the years, so that rather than storing up ideas for a song over a period of time, the songwriting process is now much more spontaneous. Thus it’s unlikely that he had heard Chokri’s 2015 track and formally noted down some ideas from it for use in subsequent songwriting sessions.

According to The Guardian, Sheeran said of his current songwriting: “There is no pre-mediated thought process, I simply make things up as I go along – and if it sounds good, I keep it. I think of them as sort of ‘excitement bottles’ – if a song is working, the excitement pushes it to the point where it’s finished; if it’s not, then I’ll leave it and move on to something else”.

That speedy process, he added, meant that a recent week-long songwriting session with The National’s Aaron Dessner resulted in 25 songs.

That may be so today, Sutcliffe responded. But, according to Law360, he argued, “the evidence is overwhelming that, at the time of writing ‘Shape Of You’, your songwriting process involved collecting ideas”. Sheeran did not concur, however. “You say it’s overwhelming, I don’t agree with that”, he responded.

Sheeran also dismissed the suggestion that he must have heard Chokri’s earlier track, because both artists were championed by SBTV, and they had friends in common. Maybe SBTV founder Jamal Edwards – a close friend of Sheeran – had tipped him off about ‘Oh Why’. But that wasn’t likely, Sheeran countered, because he and Edwards, who died last month, talked much more about football, theatre and family than music.

As part of Sutcliffe’s narrative that Sheeran is a musical “magpie”, the lawyer has also referenced previous legal disputes in the US in which the musician has been accused of song theft.

One of those – relating to ‘Thinking Out Loud’ – continues to go through the motions. But another – where Sheeran was accused of ripping off Matt Cardle track ‘Amazing’ on his song ‘Photograph’ – was settled out of court.

Sheeran settled, Sutcliffe argued, because he knew he would lose if that dispute proceeded to trial. And in order to settle, the Sheeran side agreed to pay $5.2 million in damages and hand over 35% of the copyright in the ‘Photograph’ song.

But, Sheeran said, he settled that case because it was becoming a “nuisance”, not because he believed he had infringed ‘Amazing’ when writing ‘Photograph’. And he was advised by his lawyers that agreeing to the sizeable damages settlement was the easiest way out .

“Even though I felt that I had done nothing wrong, we decided to settle the case because of the money and time it would take to fight it”, he told the court. “However, that left me with a very bad feeling afterwards. The decision to settle felt morally weird given that we were innocent of the allegations made. It made me feel like I did not want to play the song any more”.

The case continues.