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Fine tuning music copyright law

Our expert, Stuart Price, discusses the latest copyright dispute involving popstar Ed Sheeran and his hit 'Shape of You'

During a hearing at the high court popstar Ed Sheeran won a copyright infringement action over his hit ‘Shape of You’.

Shape of You, from Ed Sheeran’s Divide album, spent 13 consecutive weeks at number one in the charts in 2017.

On Wednesday 6 April, a judge ruled that Mr Sheeran had not plagiarised the 2015 song ‘Oh Why’ by Sami Chokri. Mr Chokri and his co-writer Ross O’Donoghue claimed the ‘Oh I’ hook in Shape Of You was ‘strikingly similar’ to the ‘Oh Why’ in their own composition.

Proving a copyright infringement

In order for copyright infringement to be proved, Mr Chokri needed to prove that Mr Sheeran had listened to his song – otherwise the similarities would just be coincidence.

Judge Antony Zacaroli said Mr Chokri’s team had failed to establish that Mr Sheeran and co-writers of the song, John McDaid (of Snow Patrol) and producer Steven McCutcheon had ever heard the song written by Mr Chokri.

Mr Sheeran, Mr McDaid and Mr McCutcheon all denied being aware of Oh Why prior to writing Shape Of You.

Mr Justice Zacaroli ruled that Sheeran had “neither deliberately nor subconsciously copied” the song.

Lodders’ copyright specialist, Stuart Price, said:

“A successful claimant in a music copyright infringement action must be able to prove to the court that, on balance the defendant’s song is substantially similar to the claimant’s song. But this isn’t enough to win the case.

The claimant must also be able to prove that the defendant had access to the song and either consciously or subconsciously copied it. If the claimant’s song had never been released, or only issued in small quantities, the chances of being able to prove that the defendant had heard the song, are negligible.

Even if the track is commercially released, Spotify, the major music streaming platform, has over 70 million tracks available to access by subscribers on demand at any time, and 60,000 new tracks are uploaded every day on average. Being able to prove a defendant accessed a track is akin to finding the needle in a haystack.

Subconscious copying is also a difficult concept to grasp, after all, what musician will not admit to being influenced by the music, songs and artists that came before him? Being influenced alone is not copyright infringement. Given that the western musical scale is only made up of twelve notes, it is a statistic inevitability that similarities will arise, but it rarely follows that, even with a degree of similarity, a successful copyright claim will follow.”

More information 

Stuart Price is a partner in Lodders’ Corporate and Commercial team. He is an expert in commercial law and regularly advise clients on technology and media contracts, intellectual property matters, company secretarial and data protection issues.

Always seek professional commercial law advice. The opinions and views in this article are for information only and do not constitute legal advice. 

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