Shape of things: Sharing 12 notes and the issue of musical copyright

Why was Ed Sheeran accused of plagiarism for his chart-topping hit ‘Shape of You’? What was the ruling of U.K High Court?

The story so far: On April 6, Ed Sheeran won a copyright infringement battle in a U.K High Court over his 2017 chart-topping song ‘Shape of You.’ Grime artist Sami Chokri, also known as Sami Switch, had accused him of lifting parts of 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” refrain in his own song. The case received a fair amount of attention given Ed Sheeran’s stature and the popularity of the song.

‘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) contending that they should be added as co-writers to the credits of Shape of You. Following this, PRS suspended payments for performances or broadcast of the song to Sheeran and co. Sheeran, John McDaid and Steven McCutcheon (co-writers of ‘Shape of You‘) then filed a claim in the High Court asking for a declaration that they hadn’t infringed Chokri’s copyright. Chokri and O’Donoghue filed a counterclaim alleging infringement. 

Both sides presented evidence from forensic musicologists to indicate the similarities and the differences in the song. Additionally, the burden to prove that Sheeran had access to the song and had actually heard it rested on the defendants. In his verdict, judge Zacaroli cited Francis Day & Hunterv.Bron to outline the elements which had to be proved to adjudge that there was a copyright infringement; to paraphrase — a degree of familiarity with the work, the character of the work and its capacity to impress the mind, the objective similarity of the work, the probability that it could be a coincidence, the existence of other possible influences, and the defendant’s own evidence on the presence or otherwise in his mind of the plaintiffs’ work.

In his ruling, Zacaroli wrote that each of these pieces of music “comprises the first four tones of a rising minor pentatonic scale: A, C, D and E.” He pointed out that there was nothing original in this and that “the claimants do not claim that there was. There are countless songs in the pop, rock, folk and blues genres where the melody is drawn exclusively from the minor pentatonic scale, and moves predominantly 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,’ the judge noted. 

In court, Sheeran also sung Nina Simone’s ‘Feeling Good’, Blackstreet’s ‘No Diggity’ and his own song ‘I See Fire’ to make the point that what he was accused of lifting was commonplace in pop music, and hence not amenable to protection under copyright. 

The judge also addressed the contention that Sheeran, McCutcheon and McDaid had access to the song and hence copied the hook for their own song. He categorically addressed all possible links between Sheeran and Chokri, before arriving at the conclusion that there was no substantial proof of familiarity of Chokri’s work. He also pointed out that ‘Oh Why’ had only been played on radio twice and been viewed on YouTube 12,914 times.