The shape of things: 12-note sharing and the question of music copyright

Why was Ed Sheeran accused of plagiarism for his hit ‘Shape of You’? What was the decision of the UK High Court?

Why was Ed Sheeran accused of plagiarism for his hit ‘Shape of You’? What was the decision of the UK High Court?

The story so far: On April 6, Ed Sheeran won a copyright infringement battle in a UK High Court over his 2017 chart-topping song “Shape of You.” Grime artist Sami Chokri, also known as Sami Switch, accused him of removing parts from his 2015 release “Oh Why.” Chokri and his co-writer Ross O’ Donaghue alleged that the “Oh I” hook in “Shape of You” was copied from the “Oh why” chorus in his own song. The case received a lot of attention given Ed Sheeran’s stature and the song’s popularity.

What was the case?

“Shape of You” was released in January 2017, with the demo being recorded in October 2016. In 2018, Chokri and co-writer O’Donoghue approached the Performing Rights Society (PRS) claiming they should be added as co-writers in the credits of Shape of You. Following this, PRS suspended payments for performances or airplay of the song to Sheeran and co. Sheeran, John McDaid and Steven McCutcheon (co-screenwriters of ‘Shape of You’) then filed a High Court complaint seeking a declaration that they had not infringed Chokri’s copyright. Chokri and O’Donoghue filed a counterclaim alleging infringement.

Both parties presented evidence from forensic musicologists to indicate similarities and differences in the song. Moreover, the burden of proving that Sheeran had access to the song and actually heard it was on the defendants. In his verdict, Judge Zacaroli cited Francis Day & Hunterv.Bron set out the elements that had to be proven to conclude that there was copyright infringement; to paraphrase – a degree of familiarity with the work, the character of the work and its ability to impress the mind, the objective similarity of the work, the likelihood that it may be coincidence, the existence of other possible influences and his own evidence as to whether or not the plaintiffs’ work was present in his mind.

In his ruling, Zacaroli wrote that each of these pieces of music “includes the first four tones of a rising minor pentatonic scale: A, C, D, and E.” He pointed out that there was nothing original there and that “the plaintiffs do not claim that there was any. There are countless songs in the pop, rock, folk, and blues genres where the melody is taken exclusively from the minor pentatonic scale and moves mostly between the tonic and dominant (A and E).

Sheeran himself has used this pattern before, in songs like “Don’t,” “Give Me Love,” “Grade 8,” “Afire Love” and “I See Fire,” Judge noted.

In court, Sheeran also sang Nina Simone’s “Feeling Good”, Blackstreet’s “No Diggity” and his own song “I See Fire” to argue that what he was accused of raising was common in pop music. and therefore could not be protected. under copyright.

The judge also addressed the claim that Sheeran, McCutcheon and McDaid had access to the song and therefore copied the hook for their own song. He emphatically addressed every possible connection between Sheeran and Chokri, before coming to the conclusion that there was no substantial evidence of familiarity with Chokri’s work. He also pointed out that “Oh Why” had only been played on the radio twice and had been viewed on YouTube 12,914 times.

After the decision, Sheeran said on social media: “A coincidence is inevitable that 60,000 songs are released every day on Spotify. That’s 22 million songs per year and there are only 12 notes available.

What is a copyright?

Copyright is one of the most important rights a musician can hold, enabling them to protect their creations. It is a set of rights that accrue to a creator from the moment of creation. It is vested in the original expression of an idea and gives the creator exclusive property rights for the reproduction, distribution, dissemination or adaptation of the work. Copyright relates to literary, dramatic and musical works, as opposed, for example, to inventions, which are covered by patent law.

When it comes to music, two different elements are protected by copyright: the composition, which includes the lyrics and musical score, and the sound recording itself. In this case, Chokri’s request was limited to music.

Are copyright claims common in the music industry?

This case is not a first for Ed Sheeran in terms of copyright. He is currently facing three lawsuits alleging he copied parts of his 2014 song “Thinking Out Loud” from Marvin Gaye’s “Let’s Get it On,” recorded in 1973. Previously, in 2018, Sheeran settled a 20-year lawsuit. million for his song ‘Photograph,’ after songwriters Thomas Leonard and Martin Harrington said he had copied the song ‘Amazing’ recorded by Matt Cardle.

One of the most famous copyright cases in the music world recently was Led Zeppelin’s six-year legal battle over whether or not he stole his song’s opening guitar riff. from 1971’s “Stairway to Heaven” by “Taurus”, written by the late Randy Wolfe, aka Randy California, of the band Spirit. Led Zeppelin effectively won the battle after the U.S. Supreme Court denied an appeal of a lower court ruling in Led Zeppelin’s favor in March 2020. The court found the riff was not “inherently similar”.

In 2015, Robin Thicke and Pharrell Williams had to shell out nearly $5 million after their song “Blurred Lines” was found to bear substantial similarity to Marvin Gaye’s song “Got to Give it Up.” Marvin Gaye also received posthumous songwriting credits.

In some cases, such copying is deliberate or negligent. In other cases, it could be “cryptomnesia – inadvertent plagiarism – when you mistake a memory for a new idea, which can accidentally creep into the songwriting process”, as noted by the musicologist Dr Joe Bennett in a Guardian article on “Photography” by Sheeran.

Is there an “ethical” way to borrow from other musical artists?

Musicians have a long tradition of sampling other artists’ tracks, where parts of a song are used in a new work created for commercial purposes. Entire songs have also been re-recorded by other artists, such as Jimi Hendrix’s version of “All Along the Watchtower” (original by Bob Dylan) or Jeff Buckley’s rendition of “Hallelujah”, originally by Leonard Cohen. But this must be credited and a license/permission must be obtained from the original artist. Or the rights must be purchased from the appropriate copyright holder(s). In this case, Sheeran defended himself on the stand by pointing out that he shares royalties with writers who have inspired his work. This includes royalties from “Shape of You,” shared with the writers of TLC’s 1999 song “No Scrubs.”

THE ESSENTIAL

On April 6, Ed Sheeran won a copyright infringement battle in a UK High Court over his 2017 chart-topping song “Shape of You”, against Grime artist Sami Chokri who claimed it. had accused of removing parts of his 2015 release “Oh Why”.

Copyright is a set of rights that gives the creator exclusive economic rights for the reproduction, distribution, dissemination or adaptation of his work.

Musicians have a long tradition of sampling pieces from other artists. But this must be credited and a license/permission must be obtained from the original artist. Or the rights must be purchased from the appropriate copyright holder(s).