Oh why, oh I, wonder if it is a substantial part...

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”.

Ed, obviously a big [IP] cat fan
Image - Ed Sheeran YouTube Channel

His latest album ÷ was named the best-selling album worldwide of 2017 after securing 10 out of the top 10 UK Singles Chart, breaking the record for the most top 10 UK singles from one album. One of the tracks on this album was “Shape of you” which reached number-one on the singles charts in 34 countries, was the best-selling-song of 2017 and the best-selling digital song worldwide. The song won the Grammy Award for Best Pop Solo Performance and ranked as the ninth most successful song of all-time by Billboard.

However, since 10^th May 2018 Ed’s royalty payments for the song have been frozen by PRS after singer-songwriter Sam Chokri (known as Sami Switch) claimed that “Shape of you” was copied from Sam’s song “Oh why”.

As a result, Sheeran, together with Steven Muccutcheon (songwriter, second claimant), John Mcdaid (from Snow Patrol, third claimant), Sony Music, Rokstone Music, Spirit B, Kobalt Music (publishing companies, assignees and licensees, third – seventh claimants), bought a claim in the High Court of England and Wales seeking a declaration that the song “Shape of You” does not infringe the defendants song “Oh Why”.

Sam Chokri
Image - Sammi Switch YouTube Channel

The Claim

In the particulars of the claim, it is argued that the joint authors (first, second and third claimants) created the song on 12^th October 2016. The writers recorded the creative process, highlights of which can be seen in this video. The video demonstrates the playful and creative nature of the song-writing process, which included drawing on inspiration from another song “No Scrubs” (authors of which are now credited on the US ASCAPs listing). However, the video does not feature or mention the aspects of the song that Chokri claim are copied.

“Oh Why” was released in March 2015. Chokri argued that "Shape of You" takes a substantial part of his song, using a musicologist report which suggested that the lyrics “oh why, oh why, oh why” (Oh Why) were similar to those of “Oh I, Oh I, Oh I” in Shape of You. Other similarities claimed included: structure of the lyrics between the choruses, tone, harmonic progression, texture, melodic fills, rhythmic clicking.

The claim argues that there are significant differences between the songs, and counter the similarities proposed by the musicologist report, such as different lyrical content, different keys, different musical content of fills, different number and rhythm of clicking sounds. Furthermore, that since “I” and “why” are different, it is only the “oh” that is similar, and 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. The claim also states that the writers have no recollection of ever hearing the "Oh Why" song.

The Defence

The defendants argue that the claimants had access to the song, since it was available on platforms such as Spotify, iTunes, YouTube and Facebook; and that Ed and Sam met at a launch party and a Birthday party in 2011. They also argue that the two artists share a number of links, and are part of overlapping circles or artists, writers and producers.

As to the originality, the defendants argue that the accumulative affect of the features make it striking and original to the ear. As such, they argue, that the similarities were unlikely to have occurred by coincidence. They continue their argument on the basis of the similarities between the two songs, particularly in relation to texture, melody and notes. However, they do not directly address the issues of substantial part, originality or idea/expression; other than to say that the song is the intellectual creation of Sam Chokri and the accumulative effects of the elements are what makes the song so original.

As such, the defendants make a counter claim for a declaration of infringement, a percentage of the royalty payments, an inquiry as to damages and an injunction against the claimant from further infringement.

Is it taking of a substantial part?

The case continues and the issues argued mean that the answer is not clear cut. Whilst the two songs might sound similar, this is only the starting point. As the Particulars of the Claim rightly point out it is only infringement if what is taken is a substantial part – based on the quality of what is taken not the quantity; in other words - the original elements. So copying unimportant details, or mere ideas, does not amount to substantial taking. The question is not whether “clicking” is something that would obtain copyright protection in its own right, but whether that component is a substantial part of the original song.

The claimants argue that the elements are unoriginal, but the defendants claim that the accumulative effect brings the originality.  As we know from Case C-5/08 Infopaq International A/S v Danske Dagblades Forening the work should be considered as a whole, provided that the particular part in question consists of the expression of the author's intellectual creation: “(ii) As to whether the text extracts constituted a substantial part of the articles, what is decisive is the quality of the extracted part and the level of the author's skill and labour which the copier has appropriated, not the amount extracted. In Infopaq the Court of Justice found that copying an extract of 11 consecutive words from an article would be partial reproduction in part for the purposes of Article 2 of the InfoSoc Directive -- so long as those words had the necessary quality of originality. This does not require the court to conduct some sort of assessment of whether the extract is novel or artistically worthwhile on its own, since that would be treating the extract as if it was itself a literary work. In these proceedings, many of the text extracts did contain elements that could be said to be the expression of the intellectual creation of the author of the article as a whole, and which thus infringed.” 

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...