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Ed is being ‘substantially’ battered lately

Written by Mark Reed on 15 August 2018

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We’ve reported on his song ‘Photograph’ apparently infringing another, and recently the classic ‘Thinking out loud’ apparently ripping off a Marvin Gaye track.  This time it is regarding his hit track ‘Shape of you’ that has supposedly been ripped apart for copyright infringement. Oh why oh why oh why oh why does he keep being targeted…..

We all know and love Ed Sheeran and his music, which makes it even more frustrating when law suits are filed against him. This time it is a suit against his hit song Shape of you that incredibly was the best-selling track last year but more amazingly was pinned as the 9th most successful track of ALL TIME……. Wow!!!!! Unfortunately, according to a musician professionally known as Sami Switch, Ed apparently infringed his song called ‘Oh why’.

Sami Switch, who’s real name is Sam Chokri has filed a claim that Sheeran has copied a substantial part of his song and resulted in royalty payments being stopped back in May until this case is resolved. This has caused Sheeran and the other co-writers, including Snow Patrol member John Mcdaid and even producers and publishers clubbing together to file a claim to get this dispute resolved. The High Court of England and Wales has a difficult task ahead of them.

Firstly, we have to consider the arguments from the Sheeran camp. Their claim purports that the song was created in 2016 and included recordings of the song-writing process and how they apparently were influenced by a track called ‘no scrubs’. Note, apparently there is no point in these recordings that is drawn to a Sami Switch track.

Now have a listen to the Sami Switch song and try and here a resemblance. On their side, they defend that oh why, which was released a year earlier than Shape of you, proves that the Sheeran track took a substantial part of his song including the ‘Oh why’ section as well as the rhythmic clicking, the structure of lyrics, texture, melodic fills and tone of the track.

The response from the Ed’s representatives was that not only are there different lyrics, fills, and rhythmic clicks, but they claim that ultimately there are clearly significant differences between the songs as a whole. If you listen carefully to the two tracks, the ‘oh why’ lyric from Switch and ‘oh I’ from Sheeran are clearly different, which means that the Switch lawyers are claiming that the ‘oh’ is what is similar so cannot be considered as a substantial part.

They also exclaimed that the particular words in question are not an original element which would mean they are not protected by copyright in that regard, and that the other technical detail within the defence claim can only be considered as ideas and too general. On the other side, it is argued that the accumulative effect within the features of the track does actually make it original, even striking to the ear, so could not be coincidence, which ensued a counter claim of infringement that included a claim against Sheeran for further infringement, damages, and more importantly royalty payments.

The Law in brief

It’s all about quality of the apparent infringement, rather than the quantity, which is where it gets tricky. The first question would be whether there is any originality within the track, which is different to someone claiming you have stolen words which are every day words or a beat or rhythm that are used in the basic chord structure of all music unless it is used within the context of the whole song. This is important; applying Case C-5/08 Infopaq International A/S v Danske Dagblades Forening that argued that 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.”

Now let’s consider whether this song’s features are just an idea. It has been claimed that it cannot be an expression of an idea within the track because firstly it must be shown that it is not sufficiently well known that its expression required no sufficient skill and labour and secondly that the idea has not been expressed in such a trivial manner that it does not satisfy the test for originality, and lastly that the expression of the idea doesn’t merit copyright protection. This has been argued by Ed Sheeran’s lawyers to be the case and so cannot warrant protection for the purposes of infringement.

George Harrison had repeatedly argued that he did not intentionally copy or even recall hearing The Chiffons 1950s track ‘He’s so fine’ but could this have been an unconscious influence for his ‘My sweet lord’ hit. This is known as subconscious copying which frequently leads to infringement claims. Those legal academics out there may recall the following text. ‘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’, which was from the Copinger and Skone James on Copyright.

Ultimately, it is a difficult task to prove intentional copying and even though someone can still stand to answer for themselves and correct an unintentional infringement, this case shows how tricky the music business is to create an original works that truly is an original work without there being someone out there who has a claim against you.

We will keep an eye on the outcome of this dispute and report back with the verdict.
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