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.  

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...