Ed Sheeran has recently appeared in the English High Court following allegations that his hugely popular song “Shape of You”, released in January 2017, infringes the copyright in a song by Sami Chokri (also known as Sami Switch) and Ross O’Donoghue called “Oh Why”, released in 2015.

It is argued that the “Oh I, Oh I, Oh I, Oh I” part of the chorus in “Shape of You” copies the “Oh Why, Oh Why, Oh Why, Oh” refrain in the Sami Switch song. Chokri and O’Donoghue claimed that they sent Ed Sheeran a recording of “Oh Why” in 2015 and, after hearing “Shape of You”, were concerned that their copyright had been infringed. Following a complaint made by Chokri and O’Donoghue, which resulted in the “Shape of You” royalty payments being frozen, Ed Sheeran asked the High Court to declare that he had not infringed copyright. Following this, Chokri and O’Donoghue filed a counterclaim for copyright infringement.

The dispute is now being heard by the High Court. Interestingly, the Court received an audience with Ed Sheeran when he sang parts of “Feeling Good” by Nina Simone, “No Diggity” by Blackstreet and even his own song “I See Fire” in order to show that the melody was actually extremely common in pop music and therefore Chokri and O’Donoghue’s hook was not original in terms of the Copyright, Designs and Patents Act 1988").

Copyright

In order for a literary, musical or artistic work (such as a song) to benefit from copyright protection, it must be original (section 1(1)(a) of the 1988 Act). The test for originality in the UK is low.  For example, it is not necessary for the entire work to be original in order to satisfy this part of the 1988 Act.  As such, if the hook referred to in this case is not original, then it is likely that Chokri and O’Donoghue’s copyright infringement case would fail. However, if it is found that it is and that Ed Sheeran’s hook is not original (because it has copied the hook in “Oh Why”) then Chokri and O’Donghue may be successful in proving copyright infringement in that part of Ed Sheeran’s song.

The 1988 Act provides that copyright infringement can occur if a “substantial part” of the work has been used. In order to determine whether a substantial part of the original works has been used “the relevant question is not whether the part which has been taken forms a substantial part of the defendant’s work, but whether a substantial part of the claimant’s work has been taken.” (Designers Guild Limited v Russell Williams (Textiles) Limited (1999) 22(7) IPD 22067, CA, [2000] 1 WLR 2416, HL). As such, there is no threshold for how much of the copyright work requires to have been used without permission for copyright infringement to take place. Instead, it is whether the part used is a substantial part of the copyright holders work. It has been noted that where the music referred to is a short refrain or a hook, as it is in this case, the Court will consider “whether the piece which was copied was the result of any particular inventiveness on the part of the original author” (EMI Music Publishing Ltd v Papathanasiou [1993] E.M.L.R. 306 Ch D). Therefore, if the Court finds that Ed Sheeran’s version of the hook was the result of the inventiveness of Chokri and O’Donoghue, it may find that copyright infringement has occurred, despite only a small part of the song being allegedly copied.

It will be interesting to see the outcome of this case given its high profile. As an intellectual property solicitor and also a songwriter, it is a case that I will personally be keeping a close eye on.

Regardless, it is a useful reminder that those creating or reproducing works protected by copyright should ensure that their works are either original or that they have the appropriate licences to use copyright protected work by another author where either a whole or substantial part of it is being reproduced.

If you would like more information in relation to any IP queries, please let us know and our IP team will be happy to discuss further with you.

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