How Will Ed Sheeran's Copyright Infringement Win Impact The Music Industry?

• Published date: 10 May 2022
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Copyright, Music and the Arts
• Law Firm: Shepherd and Wedderburn LLP
• Author: Mr Joseph Fitzgibbon

The High Court has handed down its judgment in the case of Sheeran & Ors v Chokri & Ors, a copyright infringement case raised by singer-songwriter Ed Sheeran. Judge Zacaroli found in favour of Ed Sheeran's claim that his record-breaking 2017 song 'Shape of You' did not infringe Sami Chokri's and Ross O'Donoghue's 2015 song 'Oh Why'.

How are songs protected under UK copyright?

The first stage of considering a copyright infringement claim is ascertaining that there is in fact an established copyright in place. Under UK law, the literary and musical intellectual property of songwriters is protected by the Copyright, Design and Patents Act 1988. This ensures that a songwriter, as the author of the original work, will own and control the rights to their work. These rights subsist for their lifetime and a further 70 years after death.

Copyright would therefore be infringed in this case if Ed Sheeran had copied the defendants' 'work as a whole or any substantial part of it' without their permission.

This was the argument advanced by the defendants, who contended that Sheeran had either deliberately or subconsciously copied from 'Oh Why' when he wrote 'Shape of You'. Specifically, they were concerned about the similarities between Sheeran's 'Oh I' hook and their 'Oh Why' hook.

A question of fact

Proving that Sheeran had heard this song was therefore key, for either the primary claim of deliberate copyright or for the second claim of subconscious copyright to succeed. This was a question of fact which had to be decided by the judge. The defendants put forward a number of arguments in this respect, claiming that Sheeran was a 'follower of the UK scene', and that the track had been passed to Sheeran through industry contracts. Sheeran denied this, and also denied that he had heard the song and forgotten it (which was the argument advanced in respect of subconscious copyright), stating that he never forgets hearing a song.

The judge found these arguments to be too speculative, and therefore as a matter of fact found that Sheeran had not heard the song. This highlights the difficulties artists can face when proving subconscious copyright infringement.

What is the test for copyright infringement?

Despite acknowledging similarities between the two songs, the judge pointed out that such similarities are only the starting point for a claim of copyright infringement. The test for copyright infringement is qualitative, not quantitative, and there is no set rule as to how...