ED SHEERAN - MAGPIE, SQUIRREL, OR MUSICAL GENIUS: A CURIOUS CASE OF MUSIC COPYRIGHT

In recent weeks, in proceedings at times resembling a kind of bizarre daytime TV courtroom musical dramedy, Ed Sheeran has been variously referred to in the UK High Court as a ‘magpie’ (borrowing ideas), a ‘squirrel’ (stowing them away for later use) and a genius (beyond reproach). In my view, the lovely wee chap (and he really was lovely in the thirty seconds or so I was fortunate to spend in his company at The BRIT Awards) is none of these. However he is a global musical force with an immense talent for making hits and a hero to ‘everymen’ everywhere.

As has been much publicised, our Ed has been busy fending off a copyright infringement claim regarding his hit single ‘Shape Of You’ – the UK’s bestselling song of 2017 and the most streamed song in Spotify’s history. As the old music industry adage goes - “where there’s a hit, there’s a writ” - and no matter your tastes I’m sure none of us would mind a slice of this particular musical pie. Music licensing body PRS for Music is estimated to be holding back £20m in royalties from the performances & broadcasts of the song until the case is settled.

This is not the first time Ed has faced such a claim and it is certainly not the only case of its kind around the world. Sheeran has settled claims before, over similarities between his song ‘Photograph’ and ‘Amazing’ performed by Matt Cardle (of British X Factor “fame”); his ‘Thinking Out Loud’ is soon to be in front of the US courts (for the third time), and ‘the writers behind TLC’s hit ‘No Scrubs’ have already been given credits in Shape of You’. Dua Lipa, Pharrell & Robin Thicke, Sam Smith, Katy Perry and Led Zeppelin to name a few have also recently faced similar claims.

So, what merit is there in the current claim and in Ed’s defence?

The basic premise of copyright law is that the creator of a work has the right to decide how and by whom their work will be used, subject to a few statutory exceptions. So, very broadly, where a work has been copied without consent, it is copyright infringement. In this case (under both UK & NZ law) determining whether copyright infringement has occurred turns on whether Ed has reproduced a “substantial part” of the claimant’s original copyright material. This is a qualitative test and not just a question of the quantity of alleged copying. It’s also important to note here that copyright does not protect the idea embodied in a copyright work, only the way in which that idea has been expressed. So, we won’t get a result like that in the US in 2015 where Robin Thicke and Pharrell Williams’ Blurred Lines was found to have copied “the feel” of Marvin Gaye’s (far superior and much less offensive) song ‘Got to Give it Up’. It is also relevant in UK & NZ law to show whether there is a connection or link between the alleged infringement and the copyright work (in the sense that the copyright work is the conscious source of the alleged infringement). Although ‘subconscious copying’ can still be deemed copyright infringement - as George Harrison once found out the hard way.

In the current case the claimants believe that Ed got a copy of their song ‘Oh Why’ through mutual friends or industry connections, because they’d tried very hard to get the star to hear it. Then, their story goes, when Ed Sheeran and his mates got together to write ‘Shape Of You’, they either consciously or subconsciously used a key element of ‘Oh Why’ within their new song – the part where he sings “Oh I”, which is a two line segment in a track full of other hooks, earworms and predictable pop music platitudes. Let’s forget whether or not Ed had ever heard the song by the claimants. It is possible, but in any case it’s unlikely that it was memorable. We live in a world where over 60,000 tracks are now uploaded to Spotify every day. That’s nearly one per second. And in any case whether he’d heard it or not should only really make an impact in an award of damages. So, the key question here is whether there has been a ‘substantial reproduction’ of another original work protected by copyright.

Now, I’m going to hazard an opinion. It’s always nice to side with David rather than Goliath; I’m not a fan of the ‘belittling’ strategic approach that has been taken by Ed’s legal team towards the much lesser-known musicians in this case; and as a lawyer I’d be considered by many as someone who benefits from disputes like this. However, whilst I do believe that Sami Chokri and Ross O'Donoghue feel genuinely slighted that they’re not being properly recognised for their creative work and I do sympathise with them to an extent, I just don’t think this claim has any substantial merit. Nor do I believe that Sheeran and his co-writers should have been paraded on the stand like they were.

Yes - there are two repeated lines throughout both songs that are similar but they are commonplace in pop music. As Ed himself conceded – “they are based around the minor pentatonic scale [and] they both have vowels in them”. To quote the judge in Katy Perry’s recent successful defence of her song ‘Dark Horse’, I would call these fundamental "musical building blocks" to which no writer should have an "improper monopoly". Another recent US case (in which the appeals court cleared rock legends Led Zep of infringement in relation ‘Stairway to Heaven’) included a statement that “we have never extended copyright protection to just a few notes – instead we have held that ‘a four-note sequence common in the music field’ is not the copyrightable expression of a song”.

In my view the segment in question in ‘Shape of You’ is so short and generic that, even though it’s catchy and even if Ed and/or his mates did copy or were influenced by ‘Oh Why’, it is not substantial. For me, any decision to uphold the claim would not serve songwriters - it would stifle creativity and would undermine the concept of copyright, which is designed not just to enable creators to protect & monetise their works but to encourage creativity and protect freedom of expression.

Judge Antony Zacaroli is yet to deliver his verdict on Sheeran’s case and the US cases I’ve referenced above are not directly relevant to his decision - and I have been wrong before! But in any case I hope that his judgment brings the ‘blurred lines’ surrounding musical copyright infringement in to sharper focus and sets us on a stairway to a heaven full of creative freedom & amazing music.. and maybe even some of Ed’s songs.

Christy Whelan (Music Lawyer, Sinclair Black)

*Note: this is not intended to be an in-depth legal opinion, nor does it consider all of the relevant issues or details of the various cases referred to above. Thanks to CMU (Complete Music Update) and various other news sources for helping inform this piece.