Contributors
It seems unlikely that, when songwriters Sami Chokri (aka Sami Switch) and Ross O'Donoghue reported to the Performing Rights Society ("PRS") that they should be credited as songwriters of Ed Sheeran's global hit "Shape of You" in May 2018, they anticipated that they'd be at the centre of a media frenzy nearly four years later.
Yet the trial in the High Court proceedings, initiated by Mr Sheeran and associated artists and music companies, has been the focus of much press attention in recent weeks. As has been widely reported, Mr Justice Zacaroli has found in favour the Mr Sheeran and others, declaring that no infringement of the defendants' copyright had occurred.
The assessment of whether an artist has copied (consciously or otherwise) another's work is an incredibly challenging one. Although disputes involving the alleged misappropriation of another's creative endeavours in the music industry are not new or rare, many do not reach the court room. As Mr Sheeran's statement released after the judgment indicated, artists frequently choose to settle the dispute far before trial, so there is some mystery about how such determinations are made.
Fortunately for those who are interested, the judgment delivered by Mr Justice Zacaroli gives some insight (which we discuss here) on what artists need to prove to succeed, how the parties presented their cases and, ultimately, why he found in favour of Mr Sheeran.
What did the defendants need to prove?
After the defendants' notification to the PRS – which resulted in the suspension of certain royalty payments – Mr Sheeran and other claimants issued the claim, seeking a declaration that they had not infringed copyright in the defendants' musical work "Oh Why". As a result, the defendants counter-claimed for copyright infringement.
The defendants sought to prove that, because Mr Sheeran had had access to their song, he had reproduced a substantial part – in particular the repeated hook with the lyrics 'oh why' (the "Hook") – when writing "Shape of You" which features repetition of the phrase 'oh I' (the "Phrase"). Their principal argument was that copying had happened deliberately and consciously but, in the alternative, it had occurred subconsciously.
Mr Justice Zacaroli identified a number of key components in determining infringement of a musical work, including:
- copying – which means reproducing the work in any material form
- in relation to the original work, or a substantial part – which is a qualitative, not quantitive, question
- particularly to music cases, the sounds are more important than the notes – which depends on the aural perception of the judge.
If the defendants could demonstrate sufficient similarity between the works and show that Mr Sheeran had heard their composition, the burden of proof would then shift – meaning Mr Sheeran would have to displace or disprove any conclusions which might otherwise be reached on conscious copying. Alternatively, if the defendants were to succeed on subconcious copying, they would need to establish Mr Sheeran's 'proof of familiarity' with their song and a causal link between the Hook and the Phrase. As the judge noted, there will rarely be direct evidence of subconscious copying; whether or not subconscious copying has occurred is a question of fact to be determined taking into account all the factors.
The defendants relied on the following in support of the allegation of copying by Mr Sheeran:
- The similarities and differences between the two works and their significance (suggesting that the significance of the similarities should indicate the likelihood of copying).
- The likelihood of Mr Sheeran having access to "Oh Why".
- Mr Sheeran's alleged propensity to copy and conceal, including similar fact evidence.
- Criticisms (more broadly) of Mr Sheeran's evidence and three 'key fingerprints' of Mr Chokri's work which the defendants claimed are found in Mr Sheeran's work.
Who presented evidence in the case?
Both sides presented expert evidence from musicologists, who had reviewed and collected examples from the world of music of the various elements comprising the two songs, with the aim of assisting the court in determining the likelihood that the Phrase was derived from the Hook as opposed to any other sources. In addition, the relevant musical phrases from both songs were transposed into the same key for the purpose of comparison.
Along with the songwriters on either side, other witnesses involved in the creation and/or promotion of the songs (including a number of mutual contacts of Mr Sheeran and Mr Chokri) were called to cover topics including:
- the genesis of "Shape of You", and the evolution of the Phrase and other related lyrics (though no allegation of copying of lyrics was alleged);
- other materials which had been identified as possible sources of inspiration, and Mr Sheeran's keenness to avoid any copyright issue with them
- the writing process used by Mr Sheeran, and specifically the incredible speed with which he is said to produce material (which the defendants' claimed weighed in favour of him copying from others)
- whether or not Mr Sheeran had heard "Oh Why", in the context of its lack of material success and, despite the defendants' apparent efforts to publicise the song specifically to him, the lack of evidence that it had come to Mr Sheeran's attention
- Mr Sheeran's alleged habit of acting as a "magpie", accused by the defendants of routinely and deliberately taking works of other songwriters without crediting them – the subject of cross-examination for the best part of two days – and other instances in which the defendants alleged Mr Sheeran had not acted candidly when seeking clearance for use of third party works.
Not uncommon in these types of cases, the defendants attempted at various points to undermine Mr Sheeran's account. They identified 'inconsistencies' between what he and other witnesses told the court, as well as with other public accounts (promotional and entertainment interviews, other film recordings, etc.) in which he and other witnesses discussed the album "Divide" and other of Mr Sheeran's works.
However, Mr Justice Zacaroli noted that Mr Sheeran "was doing his best honestly to assist the court", as were the other songwriters, John Mr McDaid and Steven McCutcheon, and other witnesses. The judge suggested that some of the 'inconsistencies' likely arose from artistic licence in editing sound recordings and footage for the purpose of publicity or, indeed, simply passage of time, given it is more than five years since "Shape of You" was written.
'Oh Why' did the judge find in Ed Sheeran's favour?
Mr Justice Zacaroli concluded that Mr Sheeran did not – consciously or subconsciously – copy "Oh Why" in creating "Shape of You".
Significance of similarities and differences
The judge undertook a detailed examination of the music, visually and aurally, in order to make his assessment. Although he found similarities in the notes, key, vocalisation, harmonies and 'call and response' technique employed in both works, he also noted differences at least equal in number.
Furthermore, the judge was not convinced by the defendants' attempts to minimise the significance of these differences – which included the mood of each song ("Shape of You" is described as "faster, brighter and more upbeat" whilst "Oh Why" as having a "slow, dark, questioning mood"), the stressing of each syllable depending on which beat it falls ('oh-I' versus 'oh-why'), the melody and rhythm, and the inclusion of additional notes to subtly distinguish the tunes.
In view of the above, Mr Justice Zacaroli could not agree with defendants' argument that likelihood of copying was enhanced by the claimants' account of the evolution of the Phrase; the defendants suggested that Mr Sheeran started with the Hook, moved away from it in an attempt to disguise any copying, but then arrived back at something similar. Instead, the judge considered the development of the Phrase as "a natural evolution… during the production and mixing sessions", admittedly for which Mr Sheeran was "the driving force".
Access to defendants' work
Given the defendants could present no evidence that Mr Sheeran had listened to "Oh Why", they explored a number of possibilities as to how the song may have come to Mr Sheeran's attention: it being shared by mutual contacts, the parties' involvement in the "UK scene", Mr Sheeran seeking new talent for his record label, and his wanting to recreate the success of his hit with Rudimental, "Bloodstream", taking inspiration from the grime genre to which another of Mr Chokri's songs, "Trying to Breathe", belongs. However, none could convince Mr Justice Zacaroli that the song had successfully been brought to Mr Sheeran's attention.
Mr Sheeran's conduct
The court acknowledged that the admissibility of evidence of other instances of copying is permitted in cases of this nature where such history may be relevant and the alleged copier has had fair notice. However, the judge dismissed the defendants' comparison of the allegation in question with other instances where Mr Sheeran had paid homage to other artists and sought permission to use a part of their work and credited them. Interestingly, this seems to have worked against the defendants, with Mr Justice Zacaroli noting that "the fact that someone is in the habit of openly recognising and crediting the work of others makes it less likely that they would set out to steal the creative work of others".
Further, the judge was not persuaded that the fact elements of Mr Sheeran's other music were common in pop music justified a finding that he (or any other of the song's writers) routinely engaged in deliberate copying. Nor could the fact that Mr Sheeran had settled other claims involving allegations of copyright infringement (particularly where they had been no admission of copying) cause Mr Justice Zacaroli to find any reason to suppose that Mr Sheeran had deliberately copied the Hook when writing the Phrase.
The judge did not give much (if any) weight to the criticism levelled at Mr Sheeran's conduct in terms of his cross-examination in court, and disclosure of evidence before trial, stating that he "presented his evidence straightforwardly and honestly". This was compounded by the fact that the "three fingerprints" of Mr Chokri's music which were said to be present in Mr Sheeran's work could not be found by the judge.
Where do we go from here?
Mr Justice Zacaroli was quick to dismiss the defendants' resistance to the declaration of non-infringement sought by the claimants, and granted the declaration accordingly. Royalties in the value of £2.2 million which had been suspended will no doubt need to be distributed following the judgment.
Whilst Mr Sheeran has declared publicly that he will, in future, record all of his creating sessions in an attempt to avoid claims of this nature, it is difficult to see how this will have the intended effect. Although recorded footage might address claims of conscious copying, it is unlikely to adequately deal with claims involving subconscious copying.
Further, it must be remembered that the claim was instigated by Mr Sheeran, Mr McCutcheon and Mr McDaid to 'clear their names' – suggesting that, any party who seeks to question the originality of any of Mr Sheeran's compositions, could find themselves engaged in court proceedings. Some might consider this a tactic to dissuade artists from challenging Mr Sheeran altogether.
Adding to the defeat, as the "losers" in the High Court proceedings, the defendants could also be ordered to make a substantial contribution towards the legal costs incurred by the claimants; the judge commented that, even if the claimants acted prematurely in issuing the court proceedings (as alleged by the defendants), the defendants had "maintained, and widened, their attack on the claimants… ever since".
Evidently, artists who believe they have been aggrieved by copying need to think carefully when making such allegations and cannot assume it will settle without litigation – particularly if they plan to report alleged infringers to collecting societies resulting in the suspension of royalty payments.
