By now you’ll have likely read the news that Ed Sheeran and his ‘Shape of You’ co-writers John McDaid and Steve McCutcheon won their high court battle over plagiarism accusations yesterday. The trio had been accused of copying 2015 track ‘Oh Why’ by Sami Chokri and Ross O’Donoghue.
However, the judge in the case ruled that similarities between a one-bar phrase in the two songs were “only a starting point” for a copyright infringement claim, and that “significant differences” suggested that Sheeran and his co-writers “neither deliberately nor subconsciously” copied ‘Oh Why’.
The case began in 2018, and was expected to rack up legal costs of around £3m ($3.9m). After 11 days in court in March this year, it was the ‘Shape of You’ songwriters who prevailed. So what are the follow-on implications?
Sheeran posted a video offering his thoughts. “I feel like claims like this are way too common now, and have become a culture where a claim is made with the idea that a settlement will be cheaper than taking it to court, even if there’s no base for the claim,” he said.
“It’s really damaging to the songwriting industry. There’s only so many notes and very few chords used in pop music. Coincidence is bound to happen if 60,000 songs are being released every day on Spotify. That’s 22 million songs a year, and there’s only 12 notes that are available.”
Chokri and O’Donoghue have yet to put out an official statement, although Chokri posted an Instagram video with the caption “Through despair I found an instant highway to gratitude. I am rich, of love, friends and family. This is the beginning not the end.”
Industry lawyers and experts have been offering their views. “This particular case turns on a detailed, forensic analysis of the factual circumstances around Sheeran’s writing process for Shape Of You. The court held that, in practice, no copying took place,” said Nick Eziefula, partner at Simkins.
“With this high-profile case, the High Court confirms that it is not because two songs may sound similar that there is a copyright infringement,” said Dr Sabine Jacques, associate professor in IP/IT/Media Law at the University of East Anglia. “This decision should bring some comfort to creators, decreasing risk aversion towards any perceived threat of legal actions for infringement and hopefully, foster musical creativity.”
We’ll point you back to a recent guest post on Music Ally by Voisey’s Ed Newton-Rex, in which he suggested that careful documenting of the songwriting process – of the kind referred to by Eziefula above – is going to be crucial in future cases of this kind.
“Ultimately, if you’re presented with a case that you’ve copied something, the best thing you can do is present the actual, alternative process by which you reached that outcome,” wrote Newton-Rex.
“Unfortunately for artists like Sheeran, it’s rare that the creative process is documented in that much detail. Perhaps this should be a warning to other artists and writers: record as much of your creative process as you can, and hold onto it.”
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