Stemming the Tide: Ed Sheeran’s Copyright Victory Brings Changes to Copyright Evidentiary Burden

Venable LLP
Contact

Venable LLP

A United Kingdom High Court recently ruled in favor of singer-songwriter Ed Sheeran (Sheeran) in a contentious copyright infringement case over his 2017 song, Shape of You (“Shape”). The Court granted Sheeran’s claim for declaratory relief, ruling that Shape did not infringe the copyrights of UK artist Sami Chokri’s (Chokri) song Oh Why.

Sheeran’s popularity extends far beyond the United Kingdom; he is an internationally known artist. Shape topped the charts worldwide and, with over 3 billion streams, is the most-streamed song on Spotify.

The alleged infringement relates to a small eight-bar portion of Sheeran’s song in which the phrase “Oh I” (OI Phrase) is sung three times to the tune of the first four notes of the rising minor pentatonic scale. Chokri claims Sheeran copied the OI Phrase from the eight-bar chorus of Chokri’s song Oh Why, where the phrase “Oh Why” is repeated to the tune of the first four notes of the rising minor pentatonic scale in a different key.

After Chokri notified the Performing Rights Society Limited (PRS) of his claim that he should be credited as the songwriter of Shape and PRS suspended royalty payments, Sheeran commenced this lawsuit. Defendants counterclaimed that Sheeran infringed the copyright in Chokri’s Oh Why.

Under UK copyright law, a party must show both that a substantial portion of the original work was copied, and that the alleged infringer likely had access to the alleged infringed work. In the case of conscious copying, however, the evidentiary burden shifts to the alleged infringer if there is proof of sufficient similar and proof of access. The pivotal issue for the Court in this case was whether Sheeran had access to Chokri’s work. In reaching its decision, the Court had to decide whether Chokri was required to show proof of access or proof of the possibility of access.

The Court opined: “Tens of thousands of new songs are uploaded to internet sites daily. It clearly cannot be enough to shift the burden of proof that a song was uploaded to the internet thereby giving the alleged infringer means of accessing it.” The Court further explained sufficient proof depended on the nature of the original work and the degree of similarity. If the original work is “highly individual or intricate and the alleged infringing work was very close to it,” then limited evidence of access may be required to shift the burden.

The Court first analyzed the similarities and differences between the two works. While there were obvious similarities between the two phrases (both using a common pentatonic scale), the Court also found important differences. The Court further explained that each element is a common building block in pop music.

The Court then analyzed whether there was evidence that Sheeran had access to Chokri’s song. Chokri claimed Sheeran had access to the song because a copy of it has been sent to a well-known YouTube channel, SBTV, which had been created by a close friend of Sheeran. Chokri’s song was never actually featured on SBTV.  Accordingly, Chokri posited that he submitted his song to SBTV, and SBTV’s creator must have shared the song with Sheeran privately. The Court ultimately concluded there was insufficient evidence that Chokri’s song had been shared with Sheeran.

The Court next determined whether Sheeran could have found Chokri’s song on his own. Defendants argued that Sheeran was actively looking for new artists for his record label around the time Chokri’s song was released. The Court was persuaded by the fact that Sheeran took a year off from social media in 2016 and traveled. The Court concluded Sheeran was not actively looking for new music at this time.

The Court also took note of efforts to publicize Chokri’s song. The Court found none of the attempts to publicize Chokri’s song on social media were successful. “After more than two years, Oh Why had been viewed on YouTube only 12,914 times.” The song was only performed at two shows at small venues. The Court found that the possibility of Chokri’s song coming to Sheeran’s attention was remote given the evidence before the Court.

In its holding, the Court concluded that the phrases play different roles in their respective songs. Chokri’s phrase is the main hook of the song, whereas Sheeran’s phrase is not a central element in Shape. The Court found it “not credible” that Sheeran would seek out inspiration for the OI Phrase, because the four notes of the minor pentatonic scale were far too simple for Sheeran to seek.

Ultimately, the Court awarded the requested declaratory relief requested by Sheeran.

The case is titled Sheeran and others v. Chokri and others [2022] EWHC 827 (Ch).

Written by:

Venable LLP
Contact
more
less

Venable LLP on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.