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Summing up begins in Shape Of You song-theft case

By Chris Cooke | Published on Tuesday 22 March 2022

Summing up has begun in the big old ‘Shape Of You’ song-theft case, with Ed Sheeran’s lawyer declaring that the legal dispute has been “deeply traumatising” for his client, and should never have got as far as the High Court.

Sami Chokri reckons that Sheeran got a copy of his 2015 track ‘Oh Why’ through mutual friends or industry connections and then, when the star and his songwriting pals got together in late 2016 to write ‘Shape Of You’, he either consciously or subconsciously utilised a key element of the earlier song within his hit.

But Sheeran and his collaborators deny having ever heard ‘Oh Why’ before writing ‘Shape Of You’. Meanwhile, they argue, the elements that are shared by the two songs are pretty commonplace in pop music, which means it’s not entirely unlikely that two separate songwriters would separately write songs that sound similar in that way.

Representing Sheeran and his fellow ‘Shape Of You’ writers Johnny McDaid and Steven McCutcheon, Ian Mill told court that “this case should never have got to trial – my clients are entitled to be vindicated”.

According to the Press Association, both in court and via a written statement, Mill argued that “the contemporaneous documents and evidence overwhelmingly supported” his clients’ position, that ‘Shape Of You’ was created independently of ‘Oh Why’.

When it comes to the allegation that Sheeran et al deliberately chose to rip off ‘Oh Why’, for that to be the case “an awful lot of people” would have told “untruths” when testifying during this trial, making said claim “so strained as to be logically unintelligible”.

Meanwhile, the alternative theory that Sheeran heard ‘Oh Why’ after its release in 2015, unknowingly stored the song’s key line in his mind and then subconsciously inserted into ‘Shape Of You’ is “equally hopeless”. Mill added: “There is no credible basis upon which to suggest that Mr Sheeran had ever heard ‘Oh Why’ in advance of writing ‘Shape Of You'”.

The other side’s case – Mill went on in his written statement – “amounts to a series of tenuous connections and bare assertions contradicted by the contemporaneous documents and the unequivocal evidence of a significant number of relevant witnesses”.

Beyond there being no evidence Sheeran et al had ever heard ‘Oh Why’, he added, the element shared by the two songs is too “generic” and therefore not even protected by copyright in isolation. It comprises, the lawyer wrote, “the use of the first four notes of the minor pentatonic scale combined with the use of octaves and harmonies in a vocal chant. Qualitatively assessed, these elements cannot be characterised as the elements which conferred originality on ‘Oh Why’ as a musical work”.

So there you go. Chokri’s legal rep will begin his closing arguments today.