Sheer(an) coincidence or copyright infringement?

For years, artists have been using other artists' hit songs, with and without permission, in their music. From the Sugar Hill Gang sampling Chic in 'Rapper's Delight', Madonna sampling Abba in 'Hung Up', Eminem sampling Dido in 'Stan', or Flo Rida sampling Etta James in 'Good Feeling', the examples are countless. But intellectual property issues can arise when artists accuse other artists of using their songs without permission or without giving credit, as can be seen in Sheeran and others v Chokri and others (the "Sheeran case") which is currently being heard by the High Court of England & Wales.

What is the case about?

It's unlikely that Mr Justice Zacaroli expected that he would be serenaded by Ed Sheeran singing Nina Simone in the middle of the High Court this week, but that's exactly what happened when the Sheeran case called. Reports suggest that in May 2018 Ed Sheeran, along with his co-writers Johnny McDaid (of Snow Patrol fame) and Steven McCutcheon (known as Steve Mac), brought legal proceedings asking the high court to declare their 2017 chart topping hit 'Shape of You' had not infringed the copyright of Sami Chokri and Ross O'Donoghue's lesser-known song 'Oh Why', release by Mr Chokri under the name 'Sami Switch'. In return, Mr Chokri and Mr O'Donoghue raised their own claim for 'copyright infringement, damages and an account of profits in relation to the alleged infringement', accusing Ed Sheeran and his co-writers of copying parts of 'Shape of You' from their song. An estimated £20 million of royalties from Shape of You have been frozen pending the outcome of the case.

And why exactly did Mr Sheeran treat the court to a performance from the witness box? Mr Chokri and Mr O'Donoghue's position is that the "Oh I, Oh I, Oh I, Oh I" section from the pre-chorus of 'Shape of You' (apparently the most played song of all time on Spotify) was copied from 'Oh Why'. We'd encourage readers to listen to both songs to understand the section in dispute.

Mr Sheeran's position is that he had not heard the earlier song prior to composing 'Shape of You'. Furthermore, one of his grounds of defence was that even if the passage in question was similar to 'Oh Why', (which he did admit in the box according to the BBC, saying somewhat glibly that the songs are similar because both "are based around the minor pentatonic scale [and] they both have vowels in them") the melody could also be found in many other pop songs – effectively arguing that it was so commonplace that Mr Chokri and Mr O'Donoghue could not own any copyright in the tune.

That is how he came to sing elements of 'Feeling Good' by Nina Simone and – wait for it – the absolute banger that is 'No Diggity' by Blackstreet in the High Court. He did this in an effort to show the court that if certain passages from those songs, as well as 'Shape of You' and 'Oh Why', were put in the same key, they would all sound the same.

It is now up to the High Court to decide whether 'Shape of You' does indeed copy parts of 'Oh Why' and whether as a result Mr Chokri and Mr O'Donoghue are entitled to damages and a share of the royalties for the 2017 hit.

What is copyright?

Copyright arises automatically when creative material, such as original literary, dramatic, musical, and artistic works are created. In the sphere of music, copyright can apply to song lyrics, the underlying music and the sound recording of the track. Under section 16(2) of the Copyright, Designs and Patents Act 1988, copyright prevents certain use of musical works, such as copying it or performing or playing it in public, where the owner has not consented. As is clear from the Sheeran case, alleged unauthorised use of the material can result in legal claims for infringement of the copyright owner's rights.

What happens when a copyright dispute over a song arises?

In many cases, artists seek to avoid legal issues arising before releasing a song by 'clearing' parts of songs with other artists or entering into a written agreement with those who may have a claim to the copyright in the work. Following release, commercial resolutions can be sought, such as giving other artists writing credits if parallels are drawn by listeners between two songs. This was seen recently when Olivia Rodrigo gave writing credits to members of Paramore after the release of 'Good 4 U' and Ed Sheeran himself has done this on a number of occasions, even adding the writing team of TLC's 'No Scrubs' to the writing credits of 'Shape of You' after similarities were pointed out.

Even when a court action is raised, commercial resolutions such as alternative dispute resolution or an out of court settlement can result in a faster, more efficient and more cost-effective resolution, avoiding the need for a trial. However, as can be seen in the Sheeran case, in some instances it may be that the question of whether copyright has been infringed has to be decided by a court.

Whilst we will need to wait and see whether the Court decide that 'Shape of You' does infringe the copyright of Mr Chokri and Mr O'Donoghue, what is clear, is that musical artists should be aware of both their rights in relation to and the potential risks of infringing others' copyright. Where issues may arise, advice should be sought early to avoid the risk of litigation and the associated costs.

If you have any questions regarding copyright or your musical rights, please get in touch. And in the meantime, the podcast "Switched On Pop" has an excellent episode on the topic, where musicologists break down the musical building blocks of some of the contested melodies and phrases in these cases of alleged copyright infringement. We would highly recommend it to anyone who, like us, can't resist learning about the intersection between pop music and law.