Ed Sheeran plus no evidence of access = no copyright infringement

In a high-profile case about the huge hit Shape Of You, singer-songwriter Ed Sheeran has been awarded a declaration that his song did not infringe the copyright in an earlier Sami Switch song called Oh Why. [1]  

The “Oh I” hook in Shape Of You has a remarkable similarity to the “Oh why” phrase.  Yet on the facts, Sheeran was not shown to have had access to Oh Why, and the Oh Why co-writers’ counterclaim for infringement was dismissed accordingly. 

In upholding a later writer’s originality, the case goes against the tide of decisions in the wake of the Blurred Lines case, which was widely criticised as having a chilling effect on new songwriting.

Background

Ed Sheeran, Steven McCutcheon and John McDaid, the writers of the 2017 hit song Shape Of You (SOY) brought proceedings for a declaration that they had not infringed the copyright in the 2014 song Oh Why (OW) written by Sami Chokri (professionally known as Sami Switch) and Ross O'Donoghue.

The defendants had informed the Performing Right Society that they should be credited as songwriters of SOY, and so the PRS suspended payments to the claimants.  In response, the claimants brought their claim. 

The counterclaim

The defendants counterclaimed that the claimants infringed the copyright in the eight-bar chorus of OW.  The allegation of copying was against Sheeran only (and not the other claimants) by the end of cross-examination.

The counterclaim concerned a hook in SOY, i.e. the eight-bar post-chorus section during which "Oh I" (OI) is sung, three times, to the tune of the first four notes of the rising minor pentatonic scale commencing on C#.  The defendants claimed that the OI phrase was copied from the eight-bar chorus of OW, in which the phrase "Oh why" is also repeated to the tune of the first four notes of the rising minor pentatonic scale, commencing on F#.

The defendants submitted that the claimants had access to OW and “as a result” reproduced a substantial part of the OW hook in SOY, deliberately and consciously.  Alternatively, they did so subconsciously.  Mr Justice Zacaroli considered that the claim of conscious copying related to:

• the similarities and differences between the two works and their significance as an indication of the likelihood of copying;
• the likelihood that Sheeran had access to OW;
• Sheeran’s alleged propensity to copy and conceal, including similar-fact evidence; and
• criticisms of Sheeran’s evidence and of the three “key fingerprints” of Chokri.

Even if copying were established, the claimants did not accept that the relevant elements of the OW hook represented the expression of the defendants’ own intellectual creation (as being unprotectable).

The law

The lyrics were not in issue in this case: the claim of copyright infringement related to the musical work only.  Copyright subsists in original musical works and is infringed if such works are copied (i.e. reproduced) in any material form. [2]  The copying must be of the original work (or a substantial part of it), and the part in question must contain the expression of the author’s own intellectual creation.

Generally, the evidential burden lies with the claimant.  Yet in the case of conscious copying, if there is proof of sufficient similarity and proof of access, the burden of proof shifts to the alleged infringer.  That is a question of fact.

Subconscious copying is also a question of fact. [3]  It requires “proof of familiarity” and a causal link between the original work and alleged infringing work.  Since direct evidence is rare, the court must reach its decision on the basis of inferences from other evidence.

Similarities and differences

Zacaroli J considered the extent of the similarities and differences between the two songs, the possible source of the OI phrase (except the OW hook) and the evolution of the OI phrase.

He noted that, while there are obvious similarities, important differences also exist. 

• The similarities include: (a) use of the first four notes of the rising minor pentatonic scale; (b) repetition of the first three notes of the scale; (c) similar vocalisation; (d) doubling the melody an octave above and/or below; and (e) use of the OW/OI phrase as a “call and response”.  
• The principal differences include the mood of the two phrases, subtle differences between the tunes and in the harmonies, and the melodic and rhythmic responses that follow the OW and OI phrases.  Also, the OW hook begins with a quaver rest, so that the word "why" falls on the beat, giving it emphasis.  In SOY, "Oh I" is sung to two quavers beginning with the first beat of the bar, so the "Oh" is on the beat.  Accordingly, there are seven notes in the OW hook and eight in the OI phrase.  Zacaroli J found that this difference was not a mere musical technicality. The stress on “why” in OW is fundamental to the mood of the song, in which the repeated “oh why” leads into a question.  That is not the case in SOY. 

Possible source

The broad shape of the melody of the OI phrase appears in many other places in SOY, including the pre-chorus, chorus and the last line of post-chorus.  The melody itself uses notes from the rising minor pentatonic scale and follows the basic contour of A, rising to E, and falling back to A.  In Zacaroli J’s opinion, the presence of the melodic pattern of the OI phrase throughout SOY pointed against copying.

He identified the pentatonic scale as the “unifying feature” of SOY.  Innumerable pop, rock, folk and blues songs include a melody that is formed from the minor pentatonic scale and moves between A and E.  That is not original.  Examples were provided during the proceedings, including examples of several of Sheeran’s songs that incorporate that pattern.  Zacaroli J said the use of these notes for the melody was “so short, simple, commonplace and obvious in the context of the rest of the song that it is not credible that Sheeran sought out inspiration from other songs to come up with it”.

The defendants’ inference of copying from similarities was not persuasive to Zacaroli J, who identified all of those features as commonplace and their use as explicable by other reasons.

Evolution of the OI phrase.

The defendants took issue with the claimants’ lack of credible explanation for the creation of the OI phrase, and so Zacaroli J carried out a forensic analysis of the evolution of the OI phrase. 

Sheeran stated that he went to Rokstone studio on 12 October 2016, where he met the other two claimants, with the intention of writing songs for other artists.  Zacaroli J considered the evidence provided by the claimants as to the timeline of events that took place on 12 October 2016 and the additional work and production undertaken in the following weeks.  Voice-note recordings and video footage of the 12 October 2016 session were also considered during the proceedings.

The defendants raised several issues regarding the claimants’ differing recollections as to who did or did not originate certain elements of SOY and the OI phrase.  Yet Zacaroli J concluded that, at the time of writing SOY, the claimants had not expected that the writing process would be “dissected in minute detail” some years later.  Consequently, the fact that the three writers did not have consistent recollection of who came up with particular elements of SOY was unsurprising.

The defendants argued that it was not credible that the claimants wrote SOY so swiftly, and suggested that the speed of writing was indicative of copying.  Zacaroli J rejected that, finding the speed of writing to be of little relevance, especially in light of the simplicity of the words and melody of the OI phrase.

Besides, the version of the OI phrase produced by the end of the day on 12 October 2016 bore little resemblance to the OW hook.  The evidence presented suggested a natural evolution of the OI phrase during writing and recording sessions. 

Access

The defendants claimed that the claimants had access to OW via various sources and referred to Sheeran as a “magpie” who “habitually and deliberately copies and conceals the work of other songwriters”.  The judge undertook a detailed factual analysis as to whether OW may have been shared with (or discovered by) Sheeran.  This was done to assess the reliability of Sheeran’s denial that he copied the OW hook and, in the alternative case of subconscious copying, to establish the likelihood that Sheeran heard OW.

The claimants each stated that, to the best of their knowledge, they had never heard OW.  There was no evidence that OW was ever played, shown or sent to Sheeran.

Defendants’ efforts to publicise OW

OW was released on Noisey (a music blog) in March 2015.  It was later uploaded to YouTube, posted on Facebook and uploaded to other music blogs.  The EP containing OW was later released on Bandcamp on 1 June 2015.

From the evidence, it was clear that attempts to promote OW on social media did not have much success.  The track received only a “handful” of retweets and “likes” after its release.  Chokri performed OW at two live shows, each of which was attended by artists and repertoire executives and music industry contacts.

The defendants also sent emails to music industry contacts and attended meetings.  On the evidence, Daniel Lloyd-Jones, an A&R executive at Sony/ATV, was the only person to show an interest in the track.  On receipt of a SoundCloud link to the EP, he expressed enthusiasm about Chokri’s music, but there was no follow-up.  The defendants relied on his sharing part of the EP with Ed Howard (an A&R at Asylum records at the time, who worked with Sheeran) and emails sent to Howard by Chokri’s team in relation to one of Chokri’s shows.  On the facts, Zacaroli J decided that Howard did not hear OW in 2015.

The defendants also proposed the possibility that Sheeran became aware of OW through certain mutual acquaintances, including the late Jamal Edwards, Jake Roche and Jake Gosling (the owner and operator of Sticky Studios).  All of those individuals denied, or did not recall, either being sent OW, listening to OW and/or sharing it with Sheeran.  On the evidence, Zacaroli J found that OW was not shared with Sheeran by or through those individuals. 

The defendants also suggested that Sheeran became aware of OW via the producer Benny Blanco (who worked on the Divide album with Sheeran).  The judge found that to be mere speculation.

Likelihood of Sheeran’s discovering OW himself

The defendants’ three main submissions were as follows. 

• They alleged that Sheeran would have heard Chokri’s music because Sheeran was actively following the “UK scene” in 2015 and 2016, which had a limited pool of artists, and because of the “prominence” of Chokri’s material.  During the proceedings, both Chokri and Sheeran described the “UK scene” and, for Zacaroli J, it was clear that they were talking about “two quite different things”.  Sheeran explained his interest in a broader, multi-genre scene involving many artists, whereas Chokri referred to a smaller group of people who were all aware of each other.  Chokri and Sheeran only met twice and so were not part of the smaller “scene” that Chokri described.  Zacaroli J was satisfied that Chokri did not have any real prominence in the scene described by Sheeran.  Sheeran submitted that between 2015 and 2016 he travelled, disconnected from social media and wrote music, and so was not actively involved in the UK scene.  His evidence that he “disappeared” was widely publicised and substantiated by interviews he gave on his return.  Zacaroli J accepted that Sheeran was “off-grid” at the relevant time.
• The defendants next proposed that, after setting up his record label, Gingerbread Man Records, Sheeran was looking out for talent to sign, and so he would be keeping an eye on new artists. Conversely, Sheeran submitted that his motivation for starting the label was to enable him to offer recording agreements to artists that he came across and admired.  This was supported by the fact that only three artists had been signed to the label.
• The defendants also suggested that Sheeran was looking for another song in the style of Bloodstream (a song he had written with Rudimental), and that this process led him to find the EP.  The defendants proposed that, to gain inspiration, Sheeran went searching for grime songs and came across Trying To Breathe (another song on the EP), which they asserted is similar to Eraser (a song written by Sheeran and McDaid in 2016).  The defendants considered that allegation to be corroborated by the “strange” and suspicious circumstances in which Sheeran wrote Eraser, including his statement that he had “a billion ideas” for the song, and the fact that he wrote the verses at speed after asking McDaid to leave the room. The defendants pointed out that the lyrics of Eraser and Trying to Breathe include the same themes, in the same order and went on to compare lyrics from the songs.  Yet Zacaroli J concluded that the inspiration for Eraser was Sheeran’s own life.  While both songs included the idea of finding comfort in pain, the context of the theme differs in each song.  Further, it was understandable that Sheeran asked McDaid to leave the room when he wrote the verses, and he accepted Sheeran’s evidence that he preferred to free-form rap verses without being observed “by someone with no particular expertise in that genre”.

While acknowledging that Chokri is “undoubtedly a serious and talented songwriter”, Zacaroli J found that the evidence on likelihood of Sheeran’s discovery of the OW hook was at best speculative.

Alleged propensity to copy from others

The defendants sought to rely on similar-fact evidence and instances of alleged copying by Sheeran.

• First, they provided examples of deliberate use of other music in his writing, crediting writers and seeking clearances.  Yet the judge found that the examples provided had no probative value: the fact that someone usually credits other’s work in fact makes it less likely that they would steal other work. 
• Next, the defendants sought to rely on several examples that in their view demonstrated that Sheeran copied others’ work without obtaining their permission.  But Zacaroli J rejected those as credible examples of deliberate copying: they did not provide evidence of a propensity to copy and conceal.
• The defendants also relied on SOY itself on this point. The lyrics in an early version of SOY referred to the band TLC, and Sheeran intended to use a part of the melody from the song No Scrubs (written by Kandi Burruss, Kevin Briggs and Temeka Cottle and released by TLC in 1999).  Sheeran recognised that clearance would be needed, and his manager contacted Sony Music Publishing to obtain a clearance.  Yet before Sony provided a response, Sheeran decided that he would not refer to TLC or use the No Scrubs melody.  After SOY was released, the copyright owners of No Scrubs complained, clearance was obtained and the writers were credited.  Despite this, Zacaroli J found insufficient similarities between the two songs to determine that the new version of SOY included a substantial part of No Scrubs.  The fact that an earlier version of SOY copied from No Scrubs, but was changed, also did not support the submission of copying and concealing. 
• Finally, the defendants referred to lyrics from Take It Back (written by Sheeran in 2013) as an apparent admission that Sheeran is in the habit of plagiarising others.  Zacaroli J rejected the “incredible” proposition that by 2013 Sheeran had developed a habit of plagiarising other’s songs and “decided to publicise that fact to the world”.

Criticisms of Sheeran’s evidence and the three “fingerprints”

The defendants did not accept passages of Sheeran’s evidence.  Zacaroli J considered many of the defendants’ criticisms in his judgment and made clear that, while he did not address each criticism individually, he did consider them all and found Sheeran’s evidence was given in an attempt to assist the court, straightforwardly and honestly.

In addition, the defendants proposed that Sheeran’s work included three unique “fingerprints” belonging to Chokri:  (a) the similarity of the lyrics of Eraser and Trying To Breathe; (b) the “high G” present in a version of the OI phrase sung by Sheeran on 12 October 2016 that mirrors a high G in the OW hook; and (c) the labelling of some of the Protools sound files from the 12 October 2016 session as “Oh Why”.  For various detailed reasons set out in the judgment, Zacaroli J rejected such fingerprints.

Decision

Zacaroli J concluded that, while there are similarities between the two phrases, there are also significant differences, and the phrases played different roles in the songs.  As to similarity, the “one-in-a-million” chance of their being used together (and the fact that the precise notes, vocalised and harmonised in the same way has not been found before) is “no more than a starting point” when considering whether one is copied from the other.  The analysis of SOY, the writing process and the evolution of the OI phrase provided convincing evidence that the OI phrase did not originate from OW.

The evidence provided as to access was speculative at best.  On the facts, Sheeran had not heard OW and in any event did not deliberately or subconsciously copy the OW hook.

As to evidential proof (although not required), the judge found that the evidence of similarities and access was insufficient to shift the burden of proof onto the claimants.  The defendants had not shown that Sheeran copied the OI phrase, and even if the burden had shifted, the claimants established that Sheeran did not deliberately copy the OI phrase.

Other issues

While not necessary for his decision, Zacaroli J considered some other issues, which depended on the establishment of copying.  First, he found that the elements of the OW hook that were purportedly similar to the OI phrase represented the expression of Chokri’s intellectual creation.  Secondly, in his view, as suggested by the claimants, many of the relevant musical features in Chokri’s song were, when considered individually, commonplace and not unique to Chokri, stating that they were “generic and commonplace” building blocks in many musical genres.  Yet the particular combination of features was sufficiently original to represent the claimants’ own intellectual creation.

Relief

The claimants sought a declaration that they had not infringed the copyright in OW.  The defendants argued that, even if SOY were not copied from OW, such a declaration should not be granted on the basis that:

• there was no commercial basis for the declaration;
• the claim was not compliant with the pre-action protocol;
• there were disclosure failings on the claimants’ part; and
• the musicologist Peter Oxendale was not independent.

Those submissions did not deter Zacaroli J from exercising his discretion.  So he granted the declaration and dismissed the counterclaim.

Comment

Cases like this often turn on the fine line between the generic and the unique.  Nobody owns the building blocks of music, but those building blocks can be used to create an individual, original work that the songwriter owns.   

This particular case involved a forensic analysis of the factual circumstances around Sheeran’s writing process for SOY, and the court found that, in practice, no copying took place.  To quote a Sheeran song, each of the parties here built a “Lego House”, using similar combinations of bricks, but the court found that they did so independently.

‍