Ed Sheeran and his ‘Shape Of You’ collaborators yesterday issued a statement about the impact the legal battle over that song has had on their creativity and mental health after successfully defeating the copyright infringement lawsuit filed against them by grime artist Sami Chokri.
Chokri claimed that ‘Shape Of You’ lifted a key element from his earlier song ‘Oh Why’, and that Sheeran’s hit therefore infringed the copyright in his work. Proving that required Chokri to demonstrate that Sheeran had heard ‘Oh Why’ before writing ‘Shape Of You’ in autumn 2016, and that he had consciously or subconsciously borrowed that key element of the earlier track for his song.
The Chokri side employed two main tactics in trying to prove that Sheeran had indeed been exposed to ‘Oh Why’ prior to autumn 2016. First, Chokri had actively tried to get a copy of his track to the star through friends and industry contacts they had in common. And second, the element that ‘Oh Why’ and ‘Shape Of You’ share is so similar, the chances they were independently created were super low, it was argued.
However, the Sheeran side insisted he had never received a copy of ‘Oh Why’ – stressing that the Chokri team had no tangible evidence a copy of the track had reached Sheeran, who pretty much went off grid before starting work on his ‘÷’ album. Meanwhile, the shared element between ‘Oh Why’ and ‘Shape Of You’ is the kind of musical segment that is commonly found in pop music.
In his judgement yesterday, judge Antony Zacaroli very much came down on the side of Sheeran. Referring to the elements of ‘Oh Why’ and ‘Shape Of You’ that are similar as the ‘OW Hook’ and the ‘OI Phrase’ respectively, the judge wrote: “While there are similarities between the OW Hook and the OI Phrase, there are also significant differences”.
“As to the elements that are similar”, he went on, “my analysis of the musical elements of ‘Shape’ more broadly, of the writing process and the evolution of the OI Phrase, is that these provide compelling evidence that the OI Phrase originated from sources other than ‘Oh Why'”.
As for the arguments from the Chokri side as to how Sheeran may have been exposed to the former’s track, the judge added: “The totality of the evidence relating to access by Mr Sheeran to ‘Oh Why’ (whether by it being shared with him by others or by him finding it himself) provides no more than a speculative foundation for Mr Sheeran having heard ‘Oh Why’”.
“Taking into account the above matters”, he then wrote, “I conclude that Mr Sheeran had not heard ‘Oh Why’ and in any event that he did not deliberately copy the OI Phrase from the OW Hook … I am [also] satisfied that Mr Sheeran did not subconsciously copy ‘Oh Why’ in creating ‘Shape'”.
To that end, Zacaroli provided a formal declaration that ‘Shape Of You’ does not in any way infringe the copyright in ‘Oh Why’. Sheeran actually went legal first in this dispute in order to secure that declaration after a co-credit claim by Chokri and his ‘Oh Why’ co-writer Ross O’Donoghue resulted in a chunk of the PRS royalties due on ‘Shape Of You’ being frozen.
There have been a flurry of song-theft lawsuits in recent years, of course, where the people behind hit records are accused of lifting key musical or lyrical elements from previous songs. In order to prove infringement in such cases, a plaintiff needs to not only demonstrate that the alleged song thief had access to the earlier work, but also that the element shared between the old song and the new song is sufficiently substantial and original to be protected by copyright in isolation.
With the former point, there has been debate over whether or not the earlier song simply having been available on Spotify or YouTube – and therefore in theory accessible to the writers of the later work – is any kind of legitimate argument for proving actual access. Given how much music is now uploaded every single day, many reckon that something much more tangible should be required to suggest the writers of the later work were definitely exposed to the earlier song.
Meanwhile, with the latter point, there’s the question over how many beats and notes – or words – you need for a musical segment or line of lyrics to be protected by copyright when isolated from the rest of the song in which it appears, even if that segment repeats or loops throughout a track.
Many argue that many of these song-theft lawsuits are unwarranted and opportunistic, with the big ‘Blurred Lines’ ruling in the US courts – in which Robin Thicke and Pharrell Williams were found to have infringed the Marvin Gaye song ‘Got To Give It Up’ – possibly resulting in a spike in this kind of litigation.
That said, some key rulings in recent years might mean fewer of these lawsuits are filed in the future. Most song-theft legal battles are filed in the US courts – and many in the Californian courts that sit under the Ninth Circuit appeals court. And judges in the Ninth Circuit have proven to be reluctant to extend copyright protection to short musical or lyrical segments in a way that could negatively impact on the songwriting process.
And now, of course, with the ‘Shape Of You’ case, we have something of a precedent in the UK courts too. Certainly Zacaroli’s judgement tells us that under English copyright law, you need something more solid than your song simply being in circulation if you are trying to prove that a short segment of that song was lifted by another artist in the creation of another musical work.
In a video on Instagram responding to the judgement, Sheeran said he feels song-theft claims of this kind are far too common these days, and that maybe those claims are often made on the assumption most accused song-thieves will just settle rather than take the case to court.
But that is “damaging to the songwriting industry”, he went on, “there’s only so many notes and very few chords used in pop music, coincidence is bound to happen if 60,000 tracks are being released everyday on Spotify”.
Meanwhile, in a joint written statement, Sheeran and his co-writers Johnny McDaid and Steven McCutcheon added: “Everyone should be able to freely express themselves in music, in art and do so fearlessly. At the same time, we believe that there should be due process for legitimate and warranted copyright protection. However, that is not the same as having a culture where unwarranted claims are easily brought. This is not constructive or conducive to a culture of creativity”.
That statement also talked about the impact this legal battle has had on all parties involved. “There was a lot of talk throughout this case about cost”, they wrote. “But there is more than just a financial cost. There is a cost on creativity. When we are tangled up in lawsuits we are not making music or playing shows. There is a cost on our mental health. The stress this causes on all sides is immense”.
“It affects so many aspects of our every day lives and the lives of our families and friends. We are not corporations. We are not entities. We are human beings. We are songwriters. We do not want to diminish the hurt and pain anyone has suffered through this, and at the same time, we feel it is important to acknowledge that we too have had our own hurts and life struggles throughout the course of this process”.
They went on: “We are grateful that Mr Justice Zacaroli has delivered a clear and considered judgment which supports the position we have argued from the outset. ‘Shape Of You’ is original. We did not copy the defendants’ song. We respect the music of those who’ve come before us and have inspired us along the way, whoever they are. We have always sought to clear or to acknowledge our influences and collaborators. It doesn’t matter how successful something appears to be, we still respect it”.
“While this has been one of the most difficult things we have ever been through in our professional lives”, they concluded, “we will continue to stand up against baseless claims, and protect our rights and the integrity of our musical creativity, so we that can continue to make music always. Our message to songwriters everywhere is: Please support each other. Be kind to one another. Let’s continue to cultivate a spirit of community and creativity”.
It remains to be seen if rulings like this one – and those in the Ninth Circuit in the US – result in fewer song-theft lawsuits being filed in the future. Though there are some high profile cases still working their way through the system. Not the least the one over Ed Sheeran’s song ‘Thinking Out Loud’ in the American courts.
So, even if this case in the UK helps songwriters avoid more claims of this kind in the long-term, it doesn’t really help Sheeran with his legal woes in the short-term.