In brief 4 min read
The UK High Court has ruled in favour of Ed Sheeran in a copyright dispute concerning his hit song 'Shape of you'. The court held that Ed Sheeran had not, deliberately or subconsciously, copied the hook of an earlier song, 'Oh why'. We consider this fascinating decision in more detail below.
- In 2018, Ed Sheeran and others brought proceedings in the UK, seeking declarations that Mr Sheeran's song 'Shape of you' did not infringe copyright in an earlier song, 'Oh why', written by two of the defendants. The proceedings were launched after the defendants notified the Performing Rights Society Limited that they should be credited as songwriters of 'Shape of you', thereby causing it to suspend all payments to Sheeran and the other claimants for the performance and broadcast of the song.
- While the High Court agreed that there were similarities between the relevant sections of the songs, it ultimately held that Mr Sheeran did not, deliberately or subconsciously, copy 'Oh why'.
- Key to the court's decision was its finding that the particular musical notes used in the post-chorus section of 'Shape of you' were '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.'
Copyright holders; in-house counsel at record labels, and media organisations; musicians and artists.
What was the key legal issue?
The central issue in the case was whether the eight-bar post-chorus section of the hit Ed Sheeran song 'Shape of you' (in which Mr Sheeran sings the phrase 'Oh I' three times), had been copied from the eight-bar chorus of the defendants' song, 'Oh why', released several years earlier. The defendants alleged that Mr Sheeran had deliberately and consciously — or, in the alternative, subconsciously — copied the 'Oh why' hook.
What did the court find?
Ultimately, the UK High Court ruled that Mr Sheeran did not, deliberately or subconsciously, copy 'Oh why'. In determining that there had been no copying, the court observed that the hook in 'Oh Why' was a 'central part of the song', which reflected its 'slow, brooding and questioning mood', whereas the use of 'Oh I' in Sheeran's 'Shape of you' played a 'very different role'. That section of 'Shape of you' was, according to the court, 'something catchy to fill the bar before each repeated phrase 'I'm in love with your body'.' The court also noted that the particular musical notes used in this section were '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.' Interestingly, the court also pointed to the 'stark contrast' between the 'dark mood' of the 'Oh why' song and the 'upbeat, dance feel that Mr Sheeran was looking to create'.
One of the many fascinating questions raised by this decision is the extent to which copyright holders are able to enforce their rights regarding particular sections of their musical works, which are, in relative terms, simple and commonplace. Put another way, to what extent are copyright owners able to monopolise standard chord progressions, and how does the answer sit against the realities of modern-day popular music?
Another interesting aspect of this decision is the way in which the court took into account the 'mood' of 'Shape of you' as compared with that of 'Oh why'. In particular, the court observed that, given the difference in mood, 'even if Mr Sheeran had gone looking for inspiration, then Oh Why [was] far from an obvious source'. However, it stands to reason that artists, in seeking inspiration, may well look to art that evokes a different mood than they themselves are seeking to achieve.
It will be interesting to see how UK courts – and, indeed, Australian courts – grapple with these complex issues moving forward.
- When considering whether to take action for copyright infringement, carefully consider the scope of your rights, and seek expert advice as needed.
- Stay tuned for further updates in the copyright space.