by Jeremy Erwin April-21-2022 in Litigation & Dispute Resolution, Media Law, Commercial & Business, Intellectual Property
A recent decision of the English High Court highlighted the approach of the courts towards copyright claims in the music industry.
Background
The case before Mr Justice Zacaroli involved a phrase used by Ed Sheeran in his song “Shape of You”. This phrase was claimed by artist Sami Chokri to be strikingly similar to his song “Oh Why”.
Sheeran wrote this best-selling song of 2017 with two collaborators, Snow Patrol's John McDaid, and producer Steven McCutcheon, who all asked the High Court in 2018 to declare they had not infringed the copyright of Chokri and his co-writer Ross O'Donoghue, having denied ever hearing the song “Oh Why”. Two months after this, Chokri and O’Donoghue issued their claim for copyright infringement. In March 2022, the Court ruled that Sheeran had “neither deliberately nor subconsciously” copied Chokri’s song, and that the similarities between the two songs were not enough to be considered plagiarism.
Copying
Copyright exists in original musical works, defined in English law as “a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music”. That definition is very similar to that of Irish law. Copyright in music may be infringed if it is copied or reproduced in any material form, with an emphasis on a substantial qualitative infringement. The High Court assessed the merits of the claim that the bar “Oh I” used by Sheeran’s song was copied from Chokri’s bar “Oh why”.
The Court analysed the musical elements that went into the creation of Shape of You and stated that the defendants focus on three particular similarities between the two songs and their ignorance to points of difference gave them a narrow view of what, in the Court’s opinion, were merely common building blocks in music of this genre.
Despite acknowledging that there were similarities between the two phrases, the Court found that they played two different roles in their respective songs. While the “Oh why” hook is a central part of Chokri’s song, the “Oh I” phrase acts as a catchy bar to fill the space before the repeated chorus line “I’m in love with your body” in Shape of You. Furthermore, the Court held that the use of the first four notes of the rising minor pentatonic scale for the melody behind the phrase is so short, simple, and commonplace in the context of the rest of the song that it was not credible that Sheeran sought out inspiration from other songs to come up with it.
Access
In rejecting the defence, the Court held that Chokri’s claim - that Sheeran and his co-writers had access to his song and as a result reproduced a substantial part of the song’s hook - was unfounded and speculative.
While the legal burden of proof was not at issue in this case, it is interesting to note the Court’s comments on this area. In his judgment, Zacaroli J stated that the case law around conscious copying may operate to shift the evidential burden to the alleged infringer to disprove sufficient similarity. Zacaroli J notes that there are thousands of new songs uploaded to internet and streaming sites daily and that fact alone clearly cannot be enough to shift the burden of proof i.e. that a song was uploaded to the internet thereby giving the alleged infringer means of accessing it. Instead, it must be a question of fact whether the extent of the alleged infringer’s access to the original work, combined with the extent of the similarities, raises a sufficient possibility of copying to shift the evidential burden.
The English High Court was clear that for a copyright infringement claim to be successful, a claimant must demonstrate actual copying. This includes proof that the alleged infringer not only had access to the original work, but actually saw or heard it. This does not necessarily prove copying, but it may shift the burden of proof. The mere accessibility of a song without such evidence can only be speculative. In this case, “Oh Why” was played on the radio only twice, both instances being on late night radio, and there was no evidence that Sheeran or his collaborators had heard the song or had been shown a video of it. While the Court did not need to determine where the burden of proof lay in this case, Zacaroli J did comment that the evidence of similarities and access was insufficient to shift the evidential burden onto Sheeran to show that he had not accessed the song.
The court’s approach to copyright claims in England offers useful guidance as to how the Irish courts are likely to approach similar claims in Ireland, in particular the high threshold which must be met. For further information or to discuss, please contact Jeremy Erwin jerwin@hayes-solicitors.ie at Hayes solicitors LLP.
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About the Author
Jeremy Erwin
Jeremy specialises in insolvency, commercial litigation and dispute resolution, acting for a variety of companies and financial institutions in contract law cases, enforcement and recovery actions and in high value complex Commercial Court proceedings. Jeremy also specialises in intellectual property matters, including advising on registration and protection of trade marks and related rights and on trade mark disputes.