Why Ed Sheeran’s copyright victory matters – from the attorneys who represented him

The following comment is from Simon Goodbody and Mark Krais, partners and co-founders of Bray & Krais Solicitors, the law firm that represented Ed Sheeran in his recent copyright infringement case in the UK. The case was brought against Sheeran by a British artist named Sami Chokri (aka Sami Switch), who claimed that Sheeeran stole his 2015 song “Oh Why”. The verdict was handed down in Sheeran’s favor in a UK High Court on Wednesday, 4/6.


Ed Sheeran, Johnny McDaid and Steve Mac recently won a court battle over their 2017 hit shape of you.

The proceedings began when PRS suspended the song’s royalty account following an infringement lawsuit brought by songwriters Sami Chokri and Ross O’Donoghue regarding their 2014 composition Oh why.

Never heard of that shape of you Songwriters demanded a declaration that they had not infringed copyright and the release of PRS proceeds.

Chokri and O’Donoghue disagreed, claiming that Sheeran, McDaid, and Mac consciously or unconsciously copied a short musical phrase Oh why and seek damages or an account of Shape of You’s winnings.

As evidence, McDaid referenced speculative claims in the US, noting a “culture” of “songs being dragged before juries,” leading to unfavorable verdicts.

Although US cases set no precedent here, big claims are spilling over into this jurisdiction as high-profile artists become targets for lesser-known songwriters.

US rising wave

Numerous US injury cases have arisen since Robin Thicke and the co-authors of Blurred lines were convicted of copyright infringement on Marvin Gaye’s hit song Got to Give It Up and ordered to pay Gaye’s estate $7.3 million (with the court ruling citing the “groove” and “feel” as aspects of similarity or commonality, thereby blurring the distinction between performance and compositional techniques).

Robert Plant and Jimmy Page had to prove it ladder to heaven did not infringe the copyright of the song bull, written by Randy Wolfe. Katy Perry also had to endure a long battle over a six-note passage in her song dark horseallegedly copied by Flame (Marcus Gray) from his composition Happy noise.

The duo Led Zeppelin was initially successful: A jury found that the two songs were “not really similar”. That verdict was overturned when it was found that the trial judge had misled the jury by claiming that “descending chromatic scales, arpeggios, or short sequences of three notes” were not copyrighted and that they should have heard both songs. But a US appeals court restored the original ruling (and the US Supreme Court subsequently denied a motion to reconsider the matter).

Meanwhile, Perry was ordered to pay Gray $2.78 million when a jury found that the controversial six-note phrase in Dark Horse violated his earlier work. But after stating that Gray was “trying to own the basic building blocks of music, the alphabet of music that should be available to everyone,” Perry’s attorneys won on appeal. In March, a US judge reversed the original ruling, declaring that granting copyright protection to such material would amount to “permitting an unlawful monopoly on two-note pitch progressions, or even on the minor scale itself.”

Undeterred, two separate lawsuits have been filed against Dua Lipa in relation to her hit Hover; the first by Artikal Sound System on their song Live Your Life and the second by songwriters L Russell Brown and Sandy Linze on two of their works.

Trying to ride the wave in the UK?

In Smith v. Dryden, a lawsuit was filed last July against the writers and publishers of Rudimental’s hit wait all night. The Claimant, Kelly-Marie Smith, alleged that the song’s chorus was copied from her unreleased ballad, can you tell me. The elements that Smith claimed were copied amounted to the lyric “Tell me you need me” and the 3-tone phrase to which it is sung, implying that her claim relates to the alleged copies of the literary and musical works in Rudimental’s composition.

Mr Justice Zacaroli observed in his judgment in Smith v Dryden that “although there are objective similarities between the refrains of both songs, there are differences which – in the context of a simple melody comprising only three different tones – are not insignificant are”. He added that it was “plausible” that two people were trying to write a hit in the genre of wait all night would conceive the text “Tell me that you need me” and set it to music in a comparable way can you tell me. Similarly, the injury in Sheeran against Chokri was claimed on the basis that it was a very short one shape of you Passage used everyday features like another short passage in Oh why.

“It is to be hoped that the US will appeal dark horse and the UK court’s findings in Smith v. Dryden and Sheeran v. Chokri signal the end of a pernicious, regressive culture of speculative claims about everyday and, critically speaking, very popular musical elements.”

Simon Goodbody and Mark Krais, Bray & Krais Attorneys

The distinction between musical and lyrical works in the sense of [UK’s] Copyright, Designs and Patents Act (CDPA) 1988 is crucial. The lawsuit against Sheeran focused solely on the musical work “which consists of music, excluding any words or actions intended to be sung, spoken, or performed with the music.” Given the extent of the alleged resemblance, this boiled down to a two-bar musical phrase repeated three times in Shape of You above the lyrics “Oh I, Oh I, Oh I, Oh I” labeled “Oh I Post-Chorus”. will,” which allegedly reproduced a musical phrase sung to the words “oh why, oh why, oh why, oh.” In isolation, the relevant phrase is 15 seconds throughout shape of you.

Veteran musicologist Anthony Ricigliano noted that the Oh I post-chorus encompasses the first four notes of “mankind’s favorite scale” — the minor pentatonic scale. Borrowing from Smith v. Dryden, it has been argued that the rendering of these notes in the same order as the scale is a coincidence rather than a copy. The appellate judge’s warning not to unfairly constrain creativity by imposing improper protection for common compositional elements in the Katy Perry/Dark Horse case and the commentaries on the “Basic Building Blocks of Music” and the “Alphabet of Music” found in Sheeran v Chokri echo.

Regarding the similarities between the songs, Zacaroli J. in Sheeran v Chokri emphasized “that it is important to note that all these features are, however, commonplace and their use in Shape can easily be explained by other things”. He accepted Ricigliano’s proof, stating that “the use of the first four notes of the ascending minor pentatonic scale for the melody is so brief, simple, commonplace, and obvious in the context of the rest of the song that it is not credible that Mr. Sheeran sought inspiration from.” other songs to develop it.’

He concluded that Chokri and the other defendants identified significant differences between the compositions and “the fact that each element is a common building block in the music of this and many other genres, as well as the use of the same or similar elements in other parts of Shape ignored and in other Ed Sheeran songs.’

In both cases, access to the infringement claims remained flawed: that is, it must be proven that alleged infringers had access to the earlier work. In Smith v Dryden, all suggestions that the wait all night Authors previously had access to can you tell me are “extremely weak” and dependent on “poor connections”. The failure to provide access was repeated in the Sheeran v Chokri case. Zacaroli J denied any alleged avenues of access Sheeran may have heard from Oh Why.

UK copyright law requires detailed testing for infringement claims. Her nuances surpass a jury’s opinion of two similar-sounding recordings — a seemingly crucial factor in many US cases. Though the intricacies of the CDPA make few headlines, Smith v. Dryden and Sheeran v. Chokri identify the threshold facing potential claimants.

Recent judgments could herald a turning point. It is to be hoped that the US will appeal dark horse and the UK court’s findings in Smith v. Dryden and Sheeran v. Chokri signal the end of a destructive, regressive culture of speculative claims about mundane and, more importantly, well-loved musical business worldwide Why Ed Sheeran’s copyright victory matters – from the attorneys who represented him

Fry Electronics Team

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