Ed Sheeran wins ‘Shape of You’ lawsuit: ‘’Oh why, oh why, oh why’’ did Sami Switch file that copyright infringement claim?

Infringement argument:

Mr Chokri’s claim used a musicologist report, which pointed to the similarity of Mr Chokri’s lyrics ‘’oh why, oh why’’ to Sheeran’s ‘Oh I, oh I’’ lyrics. The similarities in the claim included: structure of the lyrics between the choruses, tone, harmonic progression, texture, melodic fills, rhythmic clicking.

Further, it was argued that Sheeran had access to Mr. Chokri song since the song was released in 2015 onto popular digital platforms. Mr Chokri’s barrister stated that ‘’there is a middle ground between stealing and coincidence’’ and likely that Sheeran heard the song before writing Shape of You.

Non-infringement argument:

Sheeran counter-claimed by arguing 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.

The word ‘I’ and ‘Why’ are also different between the two songs. Only the ‘oh’ part of Sheeran’s is similar to Mr Chrokri’s song. However, the lyrical element ‘oh’ is not a substantial part of the song and lacks originality for copyright protection.

Further copyright protects the expression of the idea rather than the mere idea itself. The tone and composition techniques, such as clicking, also merely reflect ideas and are therefore too general to be considered protectable expressions of ideas.

Sheeran further denied that he ever even heard Mr Chokri’s song ‘Oh Why.’ This also reinforces the argument that the Sheeran is highly unlikely to have any subconscious influence or intentionally copied from Mr. Chokri’s music.

Court Breakdown:

Mr Justice Zacaroli acknowledged that there are similarities between the ‘Oh Why’ hook in Mr Chokri’s song and Sheeran’s ‘Oh I’ phrase but there are also significant differences. This followed with the conclusion that Sheeran “neither deliberately nor subconsciously” copied a phrase from ‘Oh Why’ when writing Shape Of You.

There was a further statement by the judge that although ‘’Mr Chokri is undoubtedly a serious and talented songwriter’’ it appears that his management were trying to create some hype around the release of the SOLACE EP which had limited success.

Mr Chokri stated to the court that he felt ‘’robbed’’ by Sheeran and accused him of habitually copying other artists’ work without giving them due credit. The accusation that Sheeran came across Mr. Chokri’s song independently or through another’s association was dismissed by the court as being merely speculative. Sheeran’s lawyers further responded by stating these allegations were baseless and ‘’impossible to hold’’ with evidence that Shape of You was an ‘’independent creation.’’ Sheeran further defended himself by emphasising that he ‘’always tried to be completely fair’’ in crediting other people who contributed to his song-writing process.

The court paid attention to the music tone colour and concluded that the phrases used in both songs ‘’play very different roles’’ – the ‘Oh Why’ hook showing the track’s ‘‘slow, brooding and questioning mood’’ while the Shape of You ‘Oh I’ hook reflecting ‘’something catchy to fill the bar’’ of the song. In a written statement, Sheeran pointed out that the ‘Oh I’ phrase of the Shape of You song was ‘’very short’’ and that both his and Mr Chokri’s parts of the song were ‘’entirely commonplace.’’ The court also compared the musical tones between the two artists which rendered the phrases ‘Oh I’ and ‘Oh Why’ in a completely different music context. Sheeran’s phrase ‘Oh I’ was contextualised in a much more upbeat music mood while Mr. Chokri’s phrase ‘Oh Why’ was contextualised in a much slower down beat mood.

The court agreed that ‘’the rising minor pentatonic scale for the melody is so short, simple, commonplace and obvious in the context of the rest of the song that it is not credible that Mr Sheeran sought out inspiration from other songs to come up with it.”

Post Court Win Comments by Ed Sheeran: ‘’Claims like this are way too common and have become a culture where a claim is made with the idea that settlement will be cheaper than taking it to court even if there is no base of the claim. It is really damaging to the songwriting industry. There’s only so many notes and very few chords used in pop music. Coincidences are bound to happen if 60,000 songs are being released every day on Spotify that is 22 million songs a year and there are only 12 notes available…I hope that this ruling means in the future baseless claims like this can be avoided.’’

The IP Incentive: The case highlights that a music copyright infringement claim may be unsuccessful where the attributes of the song are due to commonplace coincidences rather than striking similarities. A substantial case therefore requires more than just a ‘’basic minor pentatonic pattern’’ and needs similarities throughout the song to prove copyright infringement of a song. WIPR analysis further pointed out that it is difficult to succeed in court due to the burden of establishing copying and the fact that many pop melodies and lyrics are commonplace across the industry. In this case, the phrases ‘Oh Why’ and ‘Oh I’ are both simple, commonplace musical and lyrical expressions which opens the view that the elements of the song are not sufficiently original to secure copyright protection.

Ed Sheeran wins ‘Shape of You’ lawsuit: ‘’Oh why, oh why, oh why’’ did Sami Switch file that copyright infringement claim?

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