“Oh Why, Oh Why, Oh Why” – the Difficulties of Copyright

By George Burton

Principal Associate

When one thinks of litigation, the traditional forum of court, with lawyers and barristers trading verbal blows before a judge, often springs to mind. Indeed, judges are routinely treated to a wide array of disputes of all forms and values, so it is to some extent inevitable that occasionally a case comes along involving a famous name. As such any case involving someone as famous as Ed Sheeran is always going to grab the headlines, as was the case earlier this month. Whether his music is to your taste or not, most will know Mr Sheeran’s 2017 song, “Shape of You”, such was its enduring popularity at the time. The case has received a large amount of press coverage and so many may also be aware that Mr Sam Chokri, also known as Sami Switch, has previously made a complaint that part of the song was, and indeed still is, similar to his own. For one reason or another this has led the parties to Court as Mr Sheeran seeks a judicial declaration that his song, “Shape of You”, does not copy Mr Chokri’s song “Oh Why”.

Before reading this article further I would invite you to listen to both tracks to form a view as to their similarity, if any.

So, what is the allegation being made? Well, part of Shape of You (according to Mr Chokri) is strikingly similar to his own song and so he relies on the law of copyright, which has been developed to protect creative thoughts, ideas and ability. No formality is required and so any “original literary, dramatic, musical or artistic work” will be protected by the Copyright, Designs and Patents Act 1988. In short, and put simply, Mr Chokri asserts that Mr Sheeran has copied part of his song and has infringed his copyright protections.

Coverage of the case suggest that this has resulted in firm exchanges but what was striking about Mr Sheeran’s evidence (which truly set this case apart from others) was his treating the court to a rendition of aspects of other songs such as Nina Simone’s song “Feeling Good”.  He did so (and at first consideration one might consider rather strangely) to draw out similarities between those two songs. At this stage I hear you ask, if he is trying to prove that he has not copied part of one song why would he offer similarities in other songs as evidence in support of his assertions? After all, is he not trying to prove that he has not copied the song?

The answer lies with the fundamental tenet of copyright law.  As mentioned, to be protected the work must be original. Courts have passed comment on this precise point in the past. As an example, I recall another high-profile case involving the publisher of the widely successful book “The Da Vinci Code” written by Dan Brown. Mr Brown’s book followed another, called “Holy Blood and Holy Grail”. The authors of that book (which is presented as non-fiction) advanced the case that they had an original idea which was, in short, that Jesus married Mary Magdalene and the descendants of that marriage represented His Royal Bloodline. The book advanced the idea that the true meaning of that royal lineage was lost to history and / or confused over time with the idea of a Holy Grail. Mr Brown’s book is a fiction and is based on the same idea. It has been astonishingly successful and was enshrined in a film starring Tom Hanks (which if you have not seen I would urge you to do so). In that case the court decided that the idea had arisen as a result of research for Holy Blood and Holy Grail. Such knowledge could not be monopolised and, therefore, was not something which could qualify for copyright protection.

Mr Sheeran has, in his evidence, advanced a similar argument. He has challenged the accusations by saying both songs follow the same melodic progression which is based around a minor pentatonic scale. The minor pentatonic scale is not uncommon. In fact, it is used in all manner of songs and so knowing about it and using it cannot be an infringement of copyright – can it? Undoubtedly Mr Chokri’s view will remain that there is far more to it than this and the style, tone and lyrical similarity between the two songs suggest an infringement on copyright and goes beyond the mere use of a pentatonic minor scale in a similar way.  

I wait, with curiosity and interest, the outcome as, if Mr Sheeran is right and the decision goes against him, the implications for popular music as a whole should not be understated.

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