Ed Sheeran – Out of Shape over Copyright Infringement Claim?

Ed Sheeran, the world famous singer-songwriter was accused of copyright infringement by two other songwriters, Sami Chokri and Ross O’Donoghue over Ed Sheeran’s 2017 hit song ‘Shape of You’ which became the year’s best selling single and remains the most-played song of all time on Spotify.

What is ‘Copyright Infringement’ – a Brief Overview

For a copyright to be infringed, there must first be an established copyright. Copyright is a property right as defined under the Copyright, Designs and Patents Act 1988, and it extends to various types of “works” including songs, films and literature.

The owner of the copyright is the author of the original work. In this instance, as it is the songwriter who creates and records the song, they are the owner of the copyright. The artists then work with businesses like music producers and record labels to commercialise their copyright.

Copyright is infringed by anyone who carries out any of the copyright owner’s exclusive rights without the permission of the copyright owner, unless one of the limited exceptions applies.

Specifically, infringement occurs when ‘the work as a whole or any substantial part of it’ has been copied. The meaning of “substantial” is determined on a qualitative basis, rather than a quantitative one. As such, the court tends to consider each infringement claim on a case-by-case basis. There is no concrete rule as to how many notes or lyrics in a piece of music or song must be the same to constitute infringement.

Key Arguments

In this case, the High Court focused on three key issues that will now be considered in turn, highlighting the arguments being put forward by Mr Sheeran’s and Mr Chokri’s respective legal teams:-

Similar Fact Evidence

The legal principle of ‘matter of similar fact’ was permitted in this case, despite an appeal from Mr. Sheeran. The principle allows for matters of similar facts in other cases to be considered as evidence in the current case. The significance of this meant that the court allowed, as evidence, the fact that Mr. Sheeran had settled other copyright infringement claims in the recent past.

For the court to have allowed this, they applied the two-stage test set out in O'Brien v Chief Constable of South Wales Police [2003] EWCA Civ 1085. Firstly, whether the similar fact evidence is admissible, meaning it must be logically probative of an issue in the case and evidence, which is not sufficiently similar to the evidence in the case before the court must be excluded. Secondly, once it is decided that the evidence is admissible, the court must then ask itself whether it ought, in the exercise of its discretion, to refuse to allow it to be admitted.

Coincidence

Mr. Chokri’s legal argument was that Mr. Sheeran had previously heard Mr. Chokri’s song before writing ‘Shape of You’ but could not remember. This argument was denied by Mr. Sheeran who stated that he never forgets hearing a song. Despite this, Mr. Chokri’s legal team stated that “there is a middle ground between stealing and coincidence.”

This distinction was important because, whilst copyright infringement does not always require knowledge of infringement, it is substantially harder to prove subconscious infringement – and this proved to be the case here.

Not “Strikingly Similar”

Mr Sheeran stated that his use of the “minor pentatonic pattern” was exceptionally common amongst artists, and that its use could be seen in songs written across the world. Mr Sheeran supported his argument in court by singing Nina Simone’s “Feeling Good” and Blackstreet’s “No Diggity” to the courtroom.   Despite this, Mr Chokri’s case stated that the ‘hook’ of the song is so similar that copyright infringement existed.

Conclusion

The High Court ruled in April 2022 that Mr. Sheeran was not liable of copyright infringement. This was a significant ruling as it will provide guidance to potential claimants as to what factors will likely be considered when bringing forward a copyright infringement claim.

It remains to be seen whether this ruling may deter copyright infringement claims being made in the future and we will watch with interest to see if it does.

These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.