Facts

The artist Ed Sheeran, together with two of his co-writers and three music publishing companies (the claimants), issued proceedings against Sami Chokri and his co-writer and management company (the defendants), seeking declarations that the claimants had not infringed the defendants’ copyright in a song written by the defendants entitled “Oh Why”.

The claim was commenced following notification by the defendants to PRS for Music that they should be credited as songwriters of a very successful song written by Ed Sheeran and his co-writers called “Shape of You” (Shape), which had caused PRS to suspend all payments to the claimants in respect of the public performance/broadcast of Shape. By a counterclaim, the defendants asserted their claim that copyright in Oh Why had been infringed by the claimants.

The song “Oh Why” was performed by Mr Chokri, released in mid-March 2015 and included on Mr Chokri’s EP “Solace”, released on 1 June 2015. Shape, performed by Ed Sheeran, was released as a single on 6 January 2017 and included on Mr Sheeran’s album “÷” (Divide), released on 3 March 2017.

The defendants’ claim related to an eight-bar post-chorus section of Shape, in which the phrase ”Oh I” (the OI Phrase) is sung, three times, to the tune of the first four notes of the rising minor pentatonic scale commencing on C#. The defendants referred to this as a “hook”, i.e. the part of a song that stands out as catchy, memorable and recurring, and contended that it was copied from the eight-bar chorus of Oh Why, in which the phrase ”Oh why” is repeated to the tune of the first four notes of the rising minor pentatonic scale, commencing on F# (the OW Hook).

There was no dispute that copyright subsisted in the musical work Oh Why. The issue was whether Ed Sheeran had copied the OW Hook in creating the OI Phrase in Shape. The defendants argued that he had access to Oh Why and had copied the OW Hook deliberately and consciously. Alternatively, they said he had done so subconsciously. The claimants denied copying and argued that, even if copying was established as a matter of fact, the elements of the OW Hook did not represent the expression of the intellectual creativity of Mr Chokri and were not protected by copyright as they did not represent that which conferred originality on Oh Why.

Decision

Mr Justice Zacaroli noted that in considering the significance of similarities between the works as an indication of the likelihood of copying, he had to consider: (i) the extent of the similarities and differences between the two works; (ii) possible sources for the OI Phrase other than the OW Hook, by reference to the rest of Shape and the extent to which it was comprised of elements commonplace in music; and (iii) the evolution of the OI Phrase, according to the claimants’ evidence and contemporaneous evidence.

Zacaroli J found that there were obvious similarities, but that there were also important differences, including the mood of the two phrases, subtle differences between the tunes and in the harmonies, and marked differences in the responses following each of the phrases, both melodically and rhythmically.

As for the likely source of the relevant elements in Shape, Zacaroli J said that the broad shape of the melodic pattern of the OI Phrase appeared in many other places in the song, which was an important pointer to the phrase not being copied from elsewhere, e.g. the words that followed ”Oh I” were set to the downward minor pentatonic scale, making it an obvious choice (given that a similar pattern was found throughout the song) to set ”Oh I” to a rising scale. The rising pentatonic scale was also present in other parts of the song. In any event, there was nothing original in this: there were countless songs where the melody was drawn exclusively from the minor pentatonic scale.

Nevertheless, the defendants argued that the OI Phrase shared multiple features in common with the OW Hook that indicated it was copied, rather than created organically. They relied on: (i) the rhythm of multiple quavers in a single bar; (ii) the instrumentation of a vocal chant with male lead and backing vocals pitched at low and high registers; and (iii) the use of alternating vowel sounds.

Zacaroli J found that all these features were commonplace and their use in Shape could be readily explained by other matters. The use of a vocal chant to fill a pre- or post-chorus section was often found in this style of music, he said, and was something that Ed Sheeran had done before. Further, the use of multiple quavers in a single bar was hardly an indication of copying. As for the instrumentation, and the oscillating vowel sounds where ”Oh I” and ”Oh why” sound materially the same, Zacaroli J said that the use of octave harmonies was a technique Ed Sheeran had used before, and there was nothing original in the vowel sounds being used in repetition.

Considering the development of the OI Phrase, Zacaroli J found, on the evidence, that it was a result of a natural evolution during the production and mixing sessions, as shown for example by Ed Sheeran’s experimentation with an instrumental part in place of the OI Phrase. This likelihood was enhanced by the fact that the musical essence of the OI Phrase was present in other parts of the song. Zacaroli J also rejected the defendants’ submission that the fact that Ed Sheeran wrote Shape in a day supported its case on copying. The evidence showed that Ed Sheeran often worked this way and, as Zacaroli J said, ”has a rare ability to come up with lyrical and melodic ideas, and connect them together to create catchy songs, at great speed”.

As for access to Oh Why, the claimants all said that they had never heard the song or the Solace EP and had never heard of Mr Chokri before he made his complaint of copyright infringement.

Oh Why was played on the radio only twice, late at night on Radio 6 Music in July 2016. It was not suggested that Mr Sheeran or anyone associated with him heard it that way. Further, the song was never sent to Ed Sheeran, his manager or to anyone associated with him with a request that it be passed on to him, despite the defendants saying that they had wanted Ed Sheeran to hear it. Instead, the defendants relied on either: (i) their efforts to publicise Oh Why and the Solace EP, including by getting it on the radar of people known to be associated with Mr Sheeran in the hopes that they might play it to him; or (ii) the possibility that Mr Sheeran would himself have come across Mr Chokri and Oh Why in looking for new artists or inspiration for his own songs.

Zacaroli J found, on the evidence, that there was no realistic possibility that Oh Why was passed on to Ed Sheeran by others. As for the likelihood of Ed Sheeran having found Oh Why himself, Zacaroli J accepted Ed Sheeran’s evidence that during the relevant period he was not actively looking for new music, and rejected the defendants’ argument that by being actively involved in the UK music scene, Ed Sheeran would have come across Mr Chokri and Oh Why. Overall, Zacaroli J found that the defendants arguments were, at best, speculative.

The defendants also said that their case was bolstered by other instances of alleged copying by Mr Sheeran. They said that the occasions where Mr Sheeran had referenced, and credited other writers was sufficient to show that copying had taken place. They said that a person who copies music, even with permission, was ”self-evidently more likely to copy without permission than a person who does not copy music at all”. Zacaroli J rejected this, finding that, on the contrary, the fact that someone was in the habit of openly recognising and crediting the work of others made it less likely that they would set out to steal the creative work of others.

Further, Zacaroli J found that, on the evidence, none of the defendants’ examples of Ed Sheeran songs that they said he had copied from others without permission stood up to scrutiny.

Accordingly, Zacaroli J held that Mr Sheeran had not heard Oh Why and, in any event, he had not deliberately, or subconsciously, copied the OW Hook in creating the OI Phrase. He rejected the claimants’ argument that the elements of the OW Hook did not represent the expression of the intellectual creativity of the defendants, but he accepted their contention that none of the elements of similarity on which the defendants relied in themselves represented that which conferred originality on Oh Why as a musical work because: (i) the use of the rising minor pentatonic scale was a generic and commonplace building block in many musical genres; (ii) the fact that each note of the scale was repeated did not alter that conclusion; and (iii) the use of a vocal chant and its harmonisation with low and high octaves were equally generic and commonplace ideas. Nevertheless, had it been necessary to decide the point, he said that he would have concluded that the combination of these features did sufficiently represent the intellectual creativity of the defendant writers.

Accordingly, the declaration as sought was granted and the counterclaim was dismissed. (Mr Edward Christopher Sheeran MBE v Mr Sami Chokri [2022] EWHC 827 (Ch) (6 April 2022) — to read the judgment in full, click here).