Ed Sheeran wins copyright case for 2017 super hit song \"Shape of You\" 12 Apr 2022

Ed Sheeran wins copyright claim for 2017 super hit song but regrets the shape lawsuits take on creativity and mental health

Authors: M. Hossain, Founder, LLC; AND Reshmi Hossain, IP & Commercial Law Specialist, LLC


British singer-songwriter Ed Sheeran ultimately won a four-year long copyright trial, brought against him, at London’s High Court after a Judge ruled that his 2017 single ‘Shape of You’ did not lift musical phrases from another track. ‘Shape of You’ was released in 2017, and was the best-selling digital song worldwide for that year. It continues to be the most-streamed song on music app Spotify with more than three billion streams till date. It had also won Ed Sheeran a Grammy for Best Pop Solo Performance and it is pertinent to note that Sheeran, along with several others, held writing credits for the said track.

It would be appropriate to say that a good part of the populace tunes into an Ed Sheeran composition as his lyrics and performances resonate with fans across the world. While it is not for the first time that the singer-songwriter has faced legal rows for a copyright dispute, as he was sued over copyright issues for two of his songs including ‘Thinking Out Loud’ and ‘Photograph’, it is in a recent edition of copyright claims against him that he has emerged victorious.

In an interview, Sheeran recently revealed that standing up for the copyright for his song ‘Shape of You’ in court was essential to prove his honesty and clear his name. As he believed that his decision to settle the 2017 dispute in respect of his song ‘Photograph’ in the $20m copyright infringement case out of court had opened floodgates for claims of similar nature. He also revealed that such legal disputes take a toll on creativity and mental health of artists.

The copyright issue revolves around the allegation by Sami Chokri and Ross O’Donoghue who had alleged that Sheeran’s song’s hook was lifted and copied from their 2015 song ‘Oh Why’. While deciding the matter brought by the claimants Ed Sheeran & Others seeking a declaration that they had not infringed any copyright, the Court ruled that Sheeran and his co-writers Johnny McDaid and producer Steve Mac did not plagiarize the alleged song. In his ruling, the Judge reiterated that Sheeran “neither deliberately nor subconsciously” copied a phrase from ‘Oh Why’ when writing ‘Shape of You,’ as Sheeran himself had emphasized during the trial.

The allegations had stated that in the song ‘Shape of You’, a common verse throughout was that of ‘Oh I, Oh I, Oh I, Oh I…’, which was purportedly based on and was ‘strikingly similar’ to the verse in Sami Switch’s (stage name for Sami Chokri) song ‘Oh Why, Oh Why, Oh Why, Oh Why…’.

In 2018, the ‘Shape of You’ writers including Ed Sheeran and others launched legal proceedings asking the High Court to declare they had not infringed on the copyright. During the trial in London, Sheeran denied borrowing ideas from other songwriters without due acknowledgement. Further, he also clarified to the Court that he “always tried to be completely fair in crediting his contributors,” adding that he was using the opportunity of the trial to clear his name. In their testimony, Sheeran, McDaid and Mac all denied even being aware of the song “Oh Why” prior to the instant copyright infringement allegations.

The legal framework surrounding copyright in the United Kingdom is dealt with by the Copyright, Designs and Patents Act 1988. Under the Act, recorded musical works are considered creative works of intellectual property, and the author of the works are afforded protection against those looking to benefit from such works by having copied them. In addition to preventing the copying of the works, the automatic protection also extends to preventing the distribution of the works, performing or playing the work in public, making an adaptation of the works and placing the works on the internet, amongst others.

However, copyright infringement claims must satisfy conditions; namely a copyright must subsist in the work, meaning that the work itself must be an original. In this instance, Ed Sheeran’s legal team contended that the alleged infringing verse in ‘Shape of You’ took the form of a “basic minor pentatonic pattern”, which was not unique in the industry and hence could not be considered to be infringing on another’s work. Furthermore, a fundamental element in a copyright infringement claim is to determine whether the alleged infringer was aware that the alleged copied song was in existence. A considerable part of the argument put forward by Chokri and O’Donoghue’s legal team was that they had sent the song ‘Oh Why to people who had a close connection with Ed Sheeran before the release of ‘Shape of You’. Hence their argument was that if Ed Sheeran did not remember the song himself, he had heard it at some point and, even if not on purpose, subconsciously wrote ‘Shape of You with ‘Oh Why’ in the back of his mind.

The Court however sided with Sheeran stating that ‘Shape of You’ was “neither deliberately nor subconsciously copied” from the song ‘Oh Why’. The Judge said that the phrases in the songs “play very different roles”, with the ‘Oh Why’ hook reflecting the track’s “slow, brooding and questioning mood”, while ‘Shape of You’s’ ‘Oh I’ phrase was “something catchy to fill the bar”. The Judge also took into consideration that, “The use of the first four notes of the rising minor pentatonic scale for the melody is so short, simple, commonplace and obvious in the context of the rest of the song that it is not credible that Mr. Sheeran sought out inspiration from other songs to come up with it.”

In addition, Judge Zacaroli also held that similarities in the phrases of each song were not enough to point towards copyright infringement and that ultimately there were differences in the songs which suggested that the ‘Oh I’ verse had originated from sources other than the song ‘Oh Why’. The Court further stressed that assertions of Ed Sheeran having heard the song ‘Oh Why’ prior to writing ‘Shape of You’ were unsubstantiated and that the songs were, therefore, more likely the ‘victim of coincidence’.

As a reaction to the ruling, Sheeran stated that, “While we’re obviously happy with the result, I feel like 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’s no base for the claim. It’s really damaging to the songwriting industry. There’s only so many notes and very few chords used in pop music. Coincidence is bound to happen if 60,000 songs are being released every day on Spotify.” He also asserted that lawsuits were not a pleasant experience and he hoped that the ruling would mean less of such baseless claims in future.

As a lesson from such copyright claims, and in order to avoid similar claims in the future, Sheeran has himself put in a safeguard like filming all of his creative writing sessions. Hence, it must be borne in mind that an ascendance in the creation of new music and limited notes to compose songs from could leave a large room for such coincidental encounters. Songwriters across the world may consider being wary of the proliferation of such claims and ensure safeguards in advance in order to avoid litigation expenses or costly settlements.