Why Ed Sheeran’s Court Victory Sounds Good For The Music Industry
Chances are you’ve heard an Ed Sheeran song called Shape of You. It has been streamed over 3 billion times on Spotify and viewed over 5 billion times on YouTube.
The song Oh Why, by Sam Chokri, is less well known. But Chokri claimed Sheeran copied it when composing his hit track.
That long-standing claim has now been thrown out after a judge ruled that, although the two songs are similar, Sheeran had “neither deliberately nor unknowingly copied” Chokri’s composition. The verdict was undoubtedly a relief for Sheeran and should be celebrated by anyone who values creativity.
It was also a good opportunity for the music industry, which has changed so much in recent years, to have a clear idea of what is (and what is not) protected by an often misunderstood law.
Simply put, the copyright infringement test has two parts. The first (in a music case) is whether the alleged infringer has heard the piece of music he is accused of having copied. After all, you can’t copy something you haven’t heard. But it’s very difficult to present actual evidence that someone has ever heard a song, so the legal standard is quite low.
In fact, this test has been overcome in other situations, such as a case in the United States where 3.8 million YouTube views were considered sufficient to assume that singer Katy Perry had heard a song.
In the Sheeran case, the Chokri side argued in court that Sheeran had copied the work of other songwriters. Chokri’s lawyer said: “Mr. Sheeran is undoubtedly very talented, he is a genius. But he is also a magpie. He borrows ideas and throws them into his songs, sometimes he will recognize it but sometimes nope.
They claimed that Sheeran could have heard their song through social media, through contacts in the music industry or simply out of his own interest in the UK music scene.
Sheeran said that to his knowledge he had never heard Chokri’s song before, but when questioned in court he could not completely rule out the possibility. “That’s why we are here,” he said.
This highlights a problem with this part of the legal test, since music is so easily and widely distributed through streaming technology and social media. It’s hard for anyone to deny the possibility of having heard a song before.
But the judge ruled that despite Chokri’s “unquestionable” talents and his management team’s efforts to create a buzz around the release of Oh Why in 2015, the song had “limited success”. As a result, the likelihood that Sheeran heard him wasn’t that great.
The second part of the copyright infringement test concerns similarity of songs – and this is where things get tricky, because copyright law isn’t supposed to protect ideas; it only protects original expressions of ideas.
This basically means that the common musical elements are freely available for anyone to use and make use of, thus allowing the creative process to unfold. But this must be carefully balanced against the copyright protection given to artists for their original creations so that they can protect, control and be paid for their work.
work in harmony
In the Sheeran case, both sides presented expert evidence from musicologists about the similarity — or dissimilarity — of the songs. Chokri’s side highlighted the melody, vocal phrasing, harmonies and the fact that the lyrics “Oh I” (Sheeran) and “Oh why” (Chokri) were used as part of a “call and answer” in both songs.
Sheeran’s side pointed out differences such as mood, differences in harmonies, and response, both melodically and rhythmically. They also argued that similar parts are so common in music that it was just a coincidence.
The judge agreed with Sheeran, noting the similarities but also the significant differences. The similarities, he said crucially, were “mundane.” Mundane items are not – and should not be – copyrighted and therefore cannot be infringed.
The 11-day trial that led to judgment in Sheeran’s favor was reportedly a costly and stressful experience. But on the positive side, as such a high-profile case, it helped to update the role of UK copyright law in the modern music industry.
The first part of the copyright test was considered in the context of music streaming, which makes it harder to prove that you’ve never heard a song before. And the second part of the test, on similarities between songs, clarified which parts of musical expression are protected and which are available to everyone.
The law must strike the right balance between protecting and encouraging creativity. In recent years, there has been a growing trend of copying accusations, which has become a major concern for songwriters. Sheeran even said he now records all of his compositions just in case a claim is made later so he can prove how he came up with his own song.
Copyright is supposed to encourage artistic endeavor, not stifle it. Fortunately, the outcome of this case puts the balance in its place, protecting only original expressions of creativity. That should come as a relief to songwriters – and music fans who love their work.