Neide Lemos
15/04/2022
Reading time: three minutes
In July 2018, Sami Chokri and music producer Ross O’Donoghue launched a copyright infringement claim against Ed Sheeran for his hit track, “Shape of You”.
They alleged that Sheeran had used a refrain from Chokri’s 2015 song “Oh Why” following the commencement of legal proceedings by Sheeran’s co-authors, John McDaid and Steven McCutcheon in May 2018. In this next instalment in the ‘Laws of Music’ series, I break down what happened in this case and how Sheeran won the copyright battle.
Read the first instalment on the ‘Legal impact of covid-19 on live music’.
Sheeran v Chokri
The court concluded that Sheeran had “neither deliberately nor subconsciously” copied the refrain from Chokri’s track. Although both songs had similarities, the differences in the songs are mathematically different. This was identified by the forensic musicologists appointed by the claimants and the defendants in this case assigned to determine the details of the technical points. Justice Zacaroli ruled that “listening to the sounds as a whole…the two phrases play very different roles in their respective songs.”
Sheeran’s defence
Sheeran argued that there are only 12 music notes available, so there are bound to be some similarities in the melodies and harmonies of most mainstream music. During his 11-day trial at the High Court, Sheeran sang melodies from “Feeling Good” by Nina Simone and “No Diggity” by Blackstreet to prove that the melody he was accused of copying is a common melody in the music scene. As explained in a previous blog post, the threshold for originality under the Copyright, Designs and Patents Act (1988) is low and future copyright infringement claims are unlikely to stop here.
Sheeran released a video on his Instagram profile and said: “Whilst we’re obviously happy with the result, I feel like claims like this are way too common now, and it has become a culture where a claim is made with the idea that settlement will be cheaper than taking it to court even if there’s no base to claim, it’s really damaging to the songwriting industry.”
Artificial intelligence and copyright
As AI advances and the applicability of AI in music increases, it will become increasingly difficult to say who has copied another musicians’ track. A problem with AI in music is that a human can give music to a neural network. The AI will learn the music pattern – through analysis, the AI can generate a new song – for originality in copyright to subsist there would need to be an author.
To find out more, read this article by Redmans on ‘An overview of copyright subsistence’.
It’s unlikely copyright claims will stop and it will become increasingly common to launch false copyright claims to make money on this basis.
What copyright holders can do, is the request that the person infringing their track stop the infringement, obtain an injunction to stop the infringement or obtain damages as a result of the copyright infringement. These disputes can often be complex and difficult to prove like Sheeran’s copyright battle has shown.
Like all litigated claims, proving copyright infringement can be costly and time-consuming for both parties involved.
Final thoughts
Today, copyright law has become increasingly difficult to enforce since the evolution of digital environments and accessibility to unregulated digital platforms. What is clear – copyright is failing to prevent the rise of claims being heard at court with there being no ways of getting around correctly identifying a legitimate claim compared to a false claim.
Interested in Neide’s laws of music series?
