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Was Sheeran “shaping” up for IP litigation?

Having categorically denied plagiarising aspects of other artists work for years, Ed Sheeran has recently been acquitted of plagiarising the chorus of Sami Chokri’s song “Oh Why” in his song “Shape of you.” Chokri explained that he first become aware of the potential similarities after hearing Sheeran’s “Shape of You” on the radio back in 2017. Chokri who performs under the name “Sami Switch” argued that the “oh I, oh I, oh I,” chorus in Sheeran’s Shape of You is “strikingly similar” to Chokri’s original song “Oh why.”

Court transcripts show that Sheeran’s lawyers argued that the contested chorus of Shape of You was “very short,” and the relevant sections of both songs were “entirely commonplace.” Since its release in 2017, Shape of you has earnt Sheeran over £20 million in revenues with a further additional £7m in royalties before payments were stopped pending the outcome of the lawsuit. [1]

Although found innocent in this case, it is not the first time that Sheeran has been accused of copyright infringement. It was previously alleged that Sheeran’s 2017 hit song “Thinking of You” included elements copied from Marvin Gaye’s hit “Let’s Get it On.” Several lawsuits were filed in the US, the most recent of which was filed by Ed Townsend, one of the co-writers of Gaye’s “Let’s Get it On.”

Music-related copyright litigation has always been a contentious issue. A high-profile case was Queen and David Bowie’s 1990’s lawsuit against Vanilla Ice. Queen and David Bowie’s representatives argued the iconic riff of “Under Pressure” had been sampled by Vanilla Ice in his track “Ice Ice Baby.” Whilst Vanilla Ice argued that he altered the riff by adding another note at the end, Queen/David Bowie sued for unauthorised use of material. The case ended up being settled in an out of court agreement for an undisclosed fee. Vanilla Ice later argued that the fee was less than the litigation costs.  

Copyright vs. Intellectual Property

Although copyright is not a registered form of intellectual property (IP), musical copyright gives artists material rights to control the way their music can be used whilst also allowing them to reap the financial benefits of their work through royalties. It is essential that music artists protect their work by enforcing owned copyright, else writers and performers leave themselves vulnerable to other artists attempting to copy and use their work without permission for personal profit. Although that opens up a whole other debate which we covered in an earlier article (https://tinyurl.com/3hef8vfh).

Two Forms of Copyright Protection

Music tracks usually provide two forms of copyright protection:

1) The first form comes under “musical melodies” including notes, lyrics etc.

2) The second form of protection comes in the form of the master recording of the produced song which is owned by the producer/artist.

These protections essentially cover the “nuts and bolts” of the music along with the final overall composition. In addition to laying down the provision of safeguarding the copyrighted work, there are several rights that copyright law grants the owner over their work. These provisions include: 

  • Reproduction- Copyright owners have the right to reproduce their work 
  • Publication– Copyright owners are entitled to make duplicates of their work for both musical composition or specific sound recordings for publishing and distributing in the market.
  • Derivative Works– Copyright owners of the overall composition have the right to make derivative versions of the original work
  • Performance Rights– Copyright owners have exclusive rights to perform the work in a public setting. These rights are only granted to the composition owners and the master copyright holders. These rights include a live performance and broadcasting on any public platform.

Interestingly, we may all have breached music copyright law without realising. For example, singing “Happy Birthday” to a group of unrelated people, such as an office setting, is technically classified as a public performance breaking copyright law! [2]

Intellectual Property Rights

Reverting back to the Sheeran case, this was fundamentally an IP problem for both parties. This case not only highlighted how intellectual property rights are vital in industries such as music or art in order to protect the image of the company/artist, but also to ensure they gain recognition for the work they produce. The outcome of the lawsuit has provided some clarity on music IP issues, however, this debate isn’t going away anytime soon. The debate will continue “When my hair’s all but gone and my memory fades, and the crowds don’t remember my name” as Sheeran would say!

Written by Jack Joel, Junior IP Analyst.

[2] https://www.linkedin.com/pulse/music-industry-copyright-critical-analysis-navin-kumar-jaggi

[1] https://www.nme.com/news/music/ed-sheerans-shape-of-you-has-made-over-7-million-in-spotify-royalties-2597108

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