Readers may remember the case of Ed Sheeran and Sam Chokri, discussed by this Kat back in August 2018 here. The case is still on going and the most recent hearing before Mr Justice Nugee took place on the 9th December 2019 in the High Court of England and Wales.

Recap of the case

Ed Sheeran's song 'Shape of you' reached number-one on the singles charts in 34 countries, was the best-selling-song of 2017, the best-selling digital song worldwide, winning multiply awards and ranked as the ninth most successful song of all-time by Billboard. But since 10th May 2018 Ed’s royalties for the song have been frozen after singer-songwriter Sam Chokri (known as Sami Switch) claimed that 'Shape of you' was copied from Sam’s song 'Oh why'.

Sheeran and fellow feline

As a result, Sheeran, together with Steven Muccutcheon (songwriter, second claimant), John Mcdaid (songwriter, the one from Snow Patrol, third claimant), Sony Music, Rokstone Music, Spirit B, Kobalt Music (publishing companies, assignees and licensees, third – seventh claimants), bought a claim against Sam Chokri (first defendant), Ross O'Donoghue (second defendant and co-songwriter) and Artists & Company Ltd (third defendant and publisher), seeking a declaration that the song 'Shape of You' does not infringe the defendants song 'Oh Why'.

Chokri agues that 'Oh Why' was released in March 2015 and 'Shape of You' takes a substantial part of the song, using a musicologist report which suggested that the lyrics “oh why, oh why, oh why” [from the song Oh Why] were similar to those of “Oh I, Oh I, Oh I” in 'Shape of You'. Other similarities claimed include: structure of the lyrics between the choruses, tone, harmonic progression, texture, melodic fills, rhythmic clicking.

Sheeran's arguments are that the joint authors of 'Shape of You' (first, second and third claimants) created the song on 12th October 2016 and that there are significant differences between the songs such as different lyrical content, different keys, different musical content of fills, different number and rhythm of clicking sounds. And, since “I” and “why” are different words, it is only the “oh” that is similar which does not amount to a substantial part of the song, nor is it protected by copyright at all since it is an unoriginal element. Additionally, the tone and composition techniques, such as clicking, are merely ideas and are too general to be the expression of ideas. See further discussion on the arguments of the parties here.

Latest developments - admissible similar fact evidence 

The defendants sought to rely on similar fact evidence to support the argument that the first to third claimants were, consciously or subconsciously, in the habit of appropriating the compositional skill and labour of other songwriters during their song writing session. This included that the claimants also created the song 'Strip That Down' (later recorded by Liam Payne), which also became the subject of a copyright dispute and now includes the creators of the song 'It Wasn't Me', who receive 25% of the PRS royalties. The same also occurred in relation to 'Shape of You', as it was alleged, that it was copied, in part, from a song called 'No Scrubs', since the writers also now appear as co-authors and receive a 15% share of the PRS royalties. And further dispute arose between Sheeran's song 'Photograph' (also written by the first and third claimants; Sheeran and McDaid) and a song called 'Amazing', following which there was a settlement agreement and 35% of the PRS royalties now go to the writers of 'Amazing'.

Naturally, the Claimants sought to strike out these allegations, which came before Deputy Master Jefferis on 4 June 2019 on the basis that similar fact evidence is only admissible in civil proceedings in appropriate circumstances as found in the House of Lords decision in O'Brien v Chief Constable of South Wales Police [2005] UKHL 26, where Lord Bingham said that any evidence to be admissible must be relevant and cited Lord Simon of Glaisdale in DPP v Kilbourne [1973] AC 729 at 756: "Evidence is relevant if it is logically probative or disprobative of some matter which requires proof… relevant (i.e. logically probative or disprobative) evidence is evidence which makes the matter which requires proof more or less probable."

Lord Bingham identified two stages in the enquiry: (1) whether the evidence is assumed (provisionally) to be true, and if so, legally admissible; and (2) whether evidence or some of it (and if so which parts of it), which ex hypothesi is legally admissible, should be admitted. He recognised that the second stage requires the judge to make a very difficult and sometimes a finely balanced judgment.

In favour of admitting the evidence, the argument will always be that justice requires the evidence to be admitted in addition to wider considerations such as public interest in exposing official misfeasance and protecting the integrity of the criminal trial process; vindication of reputation; the public righting of public wrongs, and will always depend primarily on the judge's assessment of the potential significance of the evidence, assuming it to be true, in the context of the case as a whole. On the other hand, Bigham highlighted considerations against admitting such evidence include firstly, that the admission of the evidence might distort the trial and distract the attention of the decision maker; secondly, it will be necessary to weigh the potential probative value of the evidence against its potential for causing unfair prejudice; and thirdly, stress will be laid on the burden which admission would lay on the resisting party.

The decision under appeal

Deputy Master Jefferis declined to strike out allegations, following Bingham's two stage test, set out above:

The First Part of the Test

When all the songs use the same chords guitar hero level expert is in sight! Image: Mr Throk

In relation to 'No Scrubs', the fact of the settlement of 15 %, which is of the total revenue, which means 30 percent of the music, shows that there is some real acceptance by the Claimants that there had been copying and seems to be logically probative of the possibility of the same thing happening in 'The Shape of You' and so the first part of the test in O'Brien is made out in relation to 'No Scrubs'. In relation to 'Strip That Down'; there was a clearance for 25 percent of the total, or 50 percent of the music, making it more probable that the claimants could see a risk copying being established. In relation to 'Photograph'; the settlement was 35 percent of the total, which meant 70 percent of music, and as such there was a real chance that copying might be established in that cases.

The Second Part of the Test: Proportionality
Deputy Master Jefferis fundamentally disagreed with that submission that he could make some directions and minimise the cost of all this and this is only a secondary allegation; the primary one is all about 'The Shape of You' and 'Oh Why'.  He recognised that having three more music pieces that have to be compared would greatly increase the cost and complexity and length of the trial. Then he accepted that it would have a major effect on the costs and the length of the trial as it would require expert evidence from musicologists, the music industry practice about clearance, as well as disclosure how the music was created.

However, he considered the value of the song, claimed to be £30 million - although disputed by the claimant - if it was a £2 million plus costs for a £15 million claim, or the claim only to the music part of it at £7.5 million, that would not be so disproportionate that it should be struck out. That would be to say that because it is too expensive to prove, you cannot plead it. As such, he declined to strike out allegations.

Case on Appeal of the Admission of the Similar Fact Evidence 

It was accepted that the O'Brien test was the appropriate assessment, but Mr Justice Nugee highlighted that there is a potential difference between an application as to whether evidence should be admitted at trial and an application to strike out pleadings. The question at the pleading stage, which is the stage of the current case, is a question of whether the matters that are pleaded are capable of being matters which ought to form part of the trial. The materiality of that difference is that the trial judge will have to decide whether the actual evidence given or sought to be given is admissible whereas, in these circumstances the decision is whether if the facts pleaded are proved then those facts would be admissible and could be relevant.

As such, the Judge agreed that the Deputy Master was entitled to find that the first part of the test was satisfied. in that he could conclude that the case of copying might be established in relation to the other three songs and that that could be logically probative of the case of copying in relation to 'Oh Why'.

She's done it before and she'll do it again... Image: Jonathan

As to the second part of the test, which could be stopped if it could be seen clearly at this stage that even if fully proved, the probative value was outweighed by the prejudice so that a fair trial. The claimant argued that Deputy Master based his decision on incorrect numbers and overlooked certain factors such the effect on Ed's reputation. However, the Judge did not accept this argument and stated that Deputy Master had identified a number of downsides of allowing the plea to go forward, such as the increase in the cost, complexity and length of the trial, as well as referring to the impact on the Claimant - although not hugely important, still born in mind.

Therefore, in all the circumstances the Judge did not agree with the Claimants criticisms of Deputy Master's judgment and the appeal was dismissed. Although it was noted that there is nothing to stop these pleadings to be struck out at a later stage for lack of particularisation.

The risk of including this evidence if of course to create an assumption that "once a thief, always a thief". However, where there has been an instance of similarity between songs that might have been a coincidence, it is less likely to be a coincidence where there are three instances. As it was said in the case of Rex v Sims [1946] K.B. 531, [at 540]: "The probative force of all the acts together is much greater than one alone." So the probative force of four resemblances together is much better than one alone." On the other hand, there has been a recent increase in cases of copyright infringement in songs, so the fact that there are four examples of other disputes could be a reflection of this trend more so than a pattern of behaviour by Sheeran.

Nevertheless, the songs where played to the Judge in Court, and whilst two songs sounding similar does not equate to a claim for copyright infringement, when that is supported by the clearance and royalty share evidence, this was enough to allow the pleadings at this stage.  

Meghan Markle, Her Royal Highness, the Duchess of Sussex is suing the Mail on Sunday and its parent company Associated Newspapers, after they published a private letter from Meghan to her father earlier this year.

In a press release, the lawyers for The Duchess of Sussex said that they have taken legal action over the “intrusive and unlawful publication of a private letter written by the Duchess of Sussex, which is part of a campaign by this media group to publish false and deliberately derogatory stories about her, as well as her husband. Given the refusal of Associated Newspapers to resolve this issue satisfactorily, we have issued proceedings to redress this breach of privacy, infringement of copyright and the aforementioned media agenda”.

Her Royal Katness Image: G Travels

Associated Newspapers have reportedly state that they will defend the case: “The Mail on Sunday stands by the story it published and will be defending this case vigorously. Specifically, we categorically deny that the Duchess’s letter was edited in any way that changed its meaning.”

Whether you are interested in the Royals or not, this case is a juicy one simply on account of the number of potential claims - copyright infringement, breach of moral rights, defamation, Misuse of Private Information, and breach of data protection rights. Here are some initial thoughts:

Copyright in Letters

Copyright protects original literary works and this also includes letters. The owner of a piece of work is usually the person who created it, in this case the writer of the letter. The copyright in the content of the letter therefore belongs to the writer of the letter, although the physical letter belongs to the recipient. This means that in order to share the content of a letter, Associated Newspapers would have required permission from Meghan, unless they can benefit from one of the copyright defences.
For example, if the use for the purpose of criticism, review or quotation, or for the purpose of reporting current events under section 30 of the Copyright, Designs and Patents Act 1988.

If Associated Newspapers wanted to argue that they benefited from criticism, review or quotation they would have to meet the criteria, which includes that the work had already been made available to the public, and therefore unlikely to apply to a private letter.

The exception for reporting current events does not explicitly require that the material already be available to the public, presumably this is to account for breaking news. However, it is a fair dealing exception and therefore requires that the use was fair. When considering if a use is fair, a court would take into account if the work had already been published, or if it was confidential. It is unlikely that use of confidential material would be considered fair unless there was a legitimate and continuing public interest clearly demonstrated, for example “leaked documents” with a clear public interest.

Readers may remember the case of His Royal Highness the Prince of Wales in 2006 (EWCA Civ 1776), where he also took action against Associated Newspapers after they published extracts from his diary. The Prince of Wales also brought an action for copyright infringement and breach of privacy. In relation to copyright, it was found that the Prince of Wales was the copyright owner and that the reproduction of the diary was an infringement of that copyright. Associated Newspapers argued that they benefited from the copyright exception of news reporting. However, the court found that the quotations from the journal had been chosen for the purpose of reporting on the revelation of the contents of the journal as itself an event of interest and not for the purpose of reporting on current events.

Moral Rights and Defamation

Privacy and Data Protection 

This Kat was very intrigued to hear about Canada's first reverse class action copyright case brought by film production companies against a class of a unidentified and potentially unlimited number of Canadians for copyright infringement. She is delighted that Kristianne C. Anor and Sanjit Rajayer are able to provide this detailed explanation and analysis of the case:

Kristianne C. Anor and Sanjit Rajayer are third year law students at the University of Ottawa and are interning at the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, who is intervening in this case.

Stop right there! Image: jypsygen

The aftermath of Blurred Lines continues, from Ed Sheeran, to Katy Perry, and now Drake is being sued for a beat...however, this case is slightly different in that Drake is accused of sampling without a licence, not copying a substantial part by recreating. Started from the Bottom Now We're Here with the details and other terrible Drake puns...

The parties and their music
The action is brought by Samuel Nicholas III (known as Sam Skully), the author and owner of the copyright in a beat titled “Roll Call (Instrumental)”. In 2000, Skully published a CD which included the tracks  “Roll Call” and an instrumental-only version for DJs to use to create mixes called “Roll Call (Instrumental)”.

There are nine defendants which include Drake, the producers and publishing companies involved in two songs “In My Feelings” and “Nice For What” from Drake’s 2018 album Scorpion, both Billboard number one singles.

Drake

A side story that may or may not be of any relevance to the case - at paragraph 15 of the complaint the plaintiff relives a disappointing New-Year’s-Eve-Eve in 2017 when he arrived at Gasa Gasa nightclub in New Orleans for One Dance. Defendant number three Big Freedia was supposed to be DJing. According to the complaint, when Skully arrived Big Freedia “immediately stopped playing and would not resume playing”. This story was quite distracting for this Kat. Naturally she had to launch an investigation into the venue to find out the proximity of the doorway and the DJ booth because, unless the place was empty, it seems hard to believe that the DJ would have known that Skully had stepped into the venue in order to immediately stop playing. I guess Skully had to just hold on and go home...

A surprise party 

Kiki Do You Love Me Image: Qiang Chen

On 29th July 2019, Genius News published a YouTube video of an interview with defendant number one, producer Adam Pigott (known as BlaqNmilD). In the video, Pigott is talking about the influence of New Orleans Bounce in the Drake songs “Nice for What” and “In My Feelings”. He explains at 1 minute 50 that he added a bounce beat loop called “That Beat” to the records, which must be the best he ever had because it is also sampled in several other tracks he produced including with Big Freedia. The video shows an 18 second sound clip of “That Beat” while displaying an audio spectrum labelled "blaq_bouncebeat.wav". Skully claims that “That Beat” is in fact his copyright protected work “Roll Call (Instrumental)”. [FYI if you search Roll Call Instrumental on YouTube, you get Thomas the Tank Engine, but this is the plaintiff's beat].

What the complaint does not specify is how the plaintiff knows that "That Beat" is "Roll Call (Instrumental)" used in both Drake's songs and Big Freedia's, it just says that it is a direct copy. Typically Bounce songs include one of a limited number of beats, of which Roll Call is one. However, a different source suggests that the song actually samples Drag Rap, another popular beat in Bounce.

The complaint seeks a trial by jury and all the usual relief for copyright infringment; damages, treble damages, profits, and Money in the Grave. Since the complaint, filed 21st August 2019, a summons was issued giving the defedants 21 days to respond to the claim.

Communication to the public is a highly contentious area of copyright law, that is becoming increasingly important in the information society age, yet its boundaries and scope still remain somewhat of a mystery. In The Right of Communication to the Public in EU Copyright Law, Justin Koo sets out to rehabilitate the right by exploring the regulation, analysing its problems, and proposing a reformed right for EU Copyright Law. His ambition is to establish a reformed communication to the public right that is certain and proportionate.

The monograph is set out in eight chapters. It begins with a structural analysis of the EU copyright law, setting out the normative framework on which it is constructed. Chapter one argues that the principles of proportionality and certainty should guide the development of all copyright law from inception to application. In particular that all the competing interests should be accounted for, as well as other aspects of proportionality such as suitability and necessity. For certainty to be established, this requires more than clear and precise law, but also coherent and consistent application of that law.

Chapter two reflects specifically on the background and development of communication to the public (CTTP), under the different EU directives, and through the CJEU’s rationale for the development of the right and the criteria for infringement. Concerns are raised on the scope of communication, the validity of the new public criteria and the role of knowledge and the for profit criteria.

Chapter three explores some of the issues with the CTTP in more detail, including the broad interpretation of the right by the CJEU, the definition of the term communication, the role of the making available aspect, acts of reception in the public, the new public criteria and the for profit and knowledge criteria and their overlap with secondary liability. Koo then sets out several recommendations to address these issues, for example he argues that “communication” should be defined as “any act of transmission or provision of a work” – requiring direct contact with the work. This would limit the scope of the from its current state which is considered by many to include potential access to the work or offering the work to the public.

Demonsrtating direct contact Image: Brittney Buckley

Following from this, chapter four then sets out Koo’s proposal for a reformed CTTP right, explaining how it would fit within the existing framework for EU Copyright law. This includes reconciling the proposed communication to the public right with the existing rights under copyright, and steps for complete harmonisation of CTTP.

Chapter five considers where the act of communication to the public occurs and who is responsible for the act, whereby Koo proposed a new Completion theory to aid the determination of jurisdiction and applicable law; which are discussed in chapters six and seven respectively. In addition, these chapters propose new copyright rules to account for the nuances of digital copyright law in the EU context.

The final chapter applies the proposals to a number of cases in order to demonstrate how the reformed law would operate in practice. It sets out the findings in some of the previous CJEU cases and explains how the finding would have been different under Koo’s proposed reformed law. For example, in Svensson the CJEU held that the provision of a clickable hyperlink to works freely available online did not amount to CTTP because the works were not made available to a new public. Under Koo’s proposed law, the finding would be the same, but the reasoning would be that there was no act of communication where there is no transmission or provision of the work.

This monograph offers a refreshing look at the right of communication to the public, making some ambitious proposals for reform, the utility of which is demonstrated particularly in the final chapter. The book would therefore appeal to anyone with an interest in communication to the public, and an open mind to how this messy area of law might be tidied up! It would be particularly useful for legislators, policy makers, judges, researchers looking at online copyright infringement in the EU.

Hart Publishing
Extent: 280
ISBN: 9781509920655
Hardback Price from Publisher: £65.00
Also available as PDF ebook and EPUB eBook: £63.18
Kindle: £61.75

Ed Sheeran is considered by many in the UK as something of a national treasure, and by others around the world an international star. He’s a singer, songwriter, guitarist, record producer and actor, who has sold more than 26 million albums and 100 million singles worldwide, making him one of the world's best-selling music artists. Sheeran as won 100 music awards, was appointed Member of the Order of the British Empire (MBE) in 2017 for services to music and charity, and earlier this year, recognised by Forbes as the 9th top earning celebrity in the "Celebrity 100 List of The World's Highest-Paid Entertainers”.
Arguments that the overall tone and texture are copied, will also come down to whether or not those elements are the expression of an idea, or merely an idea - which is in the public domain. The features might be considered an idea because (1) it is so well known that its expression required no sufficient skill and labour (2) the idea has been expressed in such a trivial manner that it does not satisfy the test for originality, or (3) the expression of the idea does merit copyright protection, but the second song has not taken the skill and labour of the first. The line between copying and taking inspiration is ever blurred (pun intended). However, the blurred lines case differs in a few ways but most significantly that Robin Thicke admitted to listening to Gaye’s Got To Give It Up and during an interview admitted "Pharrell and I were in the studio and I told him that one of my favorite songs of all time was Marvin Gaye’s Got to Give It Up. I was like, Damn, we should make something like that, something with that groove."

Kat Karaoke Image - Mrs eNil

Other arguments to consider 
Subconscious copying? - subconscious copying is an issue most common in music, perhaps due to the creative process and the consumption of music. The Claimants argue that they do not recall hearing the Oh Why song, and the Defendants suggest otherwise, but may not be able to present any evidence to demonstrate that the writers of Shape of You actively copied the song. Copyright infringement does not require knowledge but, as stated in Copinger and Skone James on Copyright - "The evidence necessary to support an inference of subconscious copying is likely to be a good deal more substantial than the evidence needed simply to shift the onus onto a defendant to disprove copying,while conversely the fact that similarities and evidence of access may be sufficient to shift the onus onto the defendant does not mean a case of subconscious copying is made out." However, in the one case where the matter has been argued, the result was inconclusive (Francis Day & Hunter Ltd v Bron [1963] Ch. 587.) In this article, Jaeger argued that Courts should allow unconscious copying to function as a defense to copyright infringement, but require defendants to overcome a rebuttable presumption that any copying was conscious.

Quotation? - Should the Defendant be able to prove that the writers of "Shape of You" had heard of "Oh Why", perhaps the use could have been a quotation? The other day, this Kat heard Professor Lionel Bentley talking about his recent research with Professor Tanya Aplin looking at the scope of the Quotation exception. In his talk, he argued that a number of songs that had sampled other songs, might have benefited from such an exception. The criteria for which would involve that 1) the purpose is really for quotation, criticism or review, 2) the material used is available to the public, 3) the use of the material is fair, 4) where practical, the use is accompanied by a sufficient acknowledgement, and 5) use of the quotation must extend no further than is required to achieve the purpose. Although, Bentley pointed out that sufficient acknowledgement might be the sticking point here.

To be continued...