Baseless claims: Ed Sheeran wins 'Shape of You' copyright case.

Most of you will have heard Ed Sheeran’s blockbuster song ‘Shape of You’, the most streamed song in Spotify’s history with over 3 billion streams. You may also have heard about the copyright case in which Sheeran and his co-writers were accused of plagiarising the 2015 song ‘Oh Why’ by Sami Chokri (aka ‘Sami Switch’) and Ross O’Donoghue.

Ed Sheeran wrote his chart-topping track with 2 collaborators, Snow Patrol’s John McDaid and producer Steven McCutcheon. They all deny having previously heard of ‘Oh Why’.

After winning the high court battle, Ed Sheeran called for an end to ‘baseless claims’ of plagiarism in the music industry.

Quality, not quantity
It was alleged that Ed Sheeran and his co-writers reproduced a substantial part of the ‘Oh Why’ pre-chorus in writing the strikingly similar ‘Oh I’ hook in the 2017 ‘Shape of You’ song.

To amount to an infringement, the copying must be of the original work, or a substantial part of it. This is a qualitative, rather than quantitative question. This test is whether the part in question contains elements which are the expression of intellectual creation of the author of the work.

While there were similarities between the ‘Oh Why’ and ‘Oh I’ phrases, it was held that:

• there were significant differences; and
• the evidence of similarities and access was insufficient to shift the evidential burden to Sheeran, so far as deliberate copying was concerned.

After studying the musical elements, Judge Zacaroli said there were ‘differences between the relevant parts’ of the songs, which ‘provide compelling evidence that the ‘Oh I’ phrase’ in Sheeran’s song originated from sources other than Oh Why’.

The encore
After the trial, Ed Sheeran shared an Instagram video with his 37.7 million Instagram followers in which he condemned the growing culture of unwarranted, ‘baseless’ copyright claims and made the following key remarks:

• ‘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 is no basis for the claim, and it’s really damaging to the song writing industry.’
• ‘There are only so many notes and very few chords used in pop music and coincidences are bound to happen if 60,000 songs are being released a day on Spotify, that is 22m songs a year, and there are only 12 notes that are available.’

The melody used by both Shape of You and Oh Why was proven by Sheeran to be a basic minor pentatonic pattern, which is commonplace in the music industry.

In emphasising the detriment lawsuits cause to songwriters, Sheeran shared his hope that the High Court ruling would
de-incentivise future baseless claims.