Posted On / 12.04.2022

The Shape of Copyright

Ed Sheeran has just won a long-running High Court copyright battle over his 2017 hit track “Shape of You” (Sheeran and others v Chokri and others [2022] EWHC 827 (Ch) (6 April 2022), which the judge ruled had not copied the 2015 song “Oh Why” by Sami Chokri.  The case is important because it shows how complex copyright questions are handled: was a substantial part of a musical work copied or not? Solicitor Brian Levine reports.  

The reason Sheeran originally brought the action, and not Chokri, is because Chokri asked the Performing Rights Society (PRS) to add him and his co-writer to the “Shape of You” credits as co-writers, which led to the freezing of 10% of the “Shape of You” royalties of £5m a year.

It looks as though Chokri was angling for a big settlement pay out, hence the tactic of claiming a co-writing credit on Sheeran’s massive hit, but Sheeran and his team called his bluff by going after Chokri in court instead.

The judge said that, despite similarities in the notes in eight-bars in each track, this was only the starting point. The rest of the songs were different and the “Oh why” refrain could have come from anywhere. No proof was found that Sheeran or either of his co-writers had ever heard Chokri’s earlier song.

The judge decided that the two phrases ("Oh I" and "Oh why") played very different roles in their respective songs. The use of the first four notes of the rising minor pentatonic scale for the “Shape of You” melody was so short, simple, commonplace, and obvious in the context of the rest of the song that it was not credible that Sheeran sought out inspiration from other songs to come up with it.

So what does this tell us? That there must be proof that the alleged copier heard a pre-existing track and then copied a substantial part?  Sheeran apparently now films all of his song writing sessions. With only 12 different notes from which to choose, passing similarities exist between many songs, and millions are recorded and released online every year.

The Sheeran case might mean that music creators will better protect themselves (such as Sheeran now filming himself composing) to prove the actual creation process.  If they do this, they might have to watch their backs less than they did before and avoid court.

For more information contact BrianLevine, Head of Media, Entertainment and Intellectual Property at Battens Solicitors, email brian.levine@battens.co.uk 01935 846258.