Ed Sheeran has won his High Court copyright trial against two songwriters who claimed he ripped off part of one of their songs for his huge 2017 hit Shape Of You.

 

Sheeran and two of his co-writers - Snow Patrol's Johnny McDaid and producer Steve McCutcheon, known as Steve Mac - had been accused of plagiarising part of a track called Oh Why by Sami Chokri, a grime artist who performs as Sami Switch.

But giving his ruling on Wednesday following a trial in March, Mr Justice Zacaroli said Sheeran "neither deliberately nor subconsciously" copied a hook from the song when writing the "Oh I" phrase for Shape Of You.

 

In a video statement released after the judgment was handed down, Sheeran told fans that "baseless" copyright claims were "damaging" to the songwriting industry.

 

"I'm not a corporation. I'm a human being," he said. "I'm a father, I'm a husband, I'm a son. Lawsuits are not a pleasant experience and I hope with this ruling, it means in the future baseless claims like this can be avoided."

 

Shape Of You, from Sheeran's Divide album, is the star's biggest hit - with some 5.26 million chart sales (sales and streams combined) as of November 2021, according to Official Charts. It spent 13 consecutive weeks at number one in 2017 - the UK's best-selling song of the year - and is the UK's most-streamed song of all time, with 496 million plays.

Some £2.2 million in royalties was frozen during the dispute, the High Court heard during the trial. PRS For Music is now awaiting legal guidance on when royalties can be distributed following the ruling.

 

The judge concluded that while there are "similarities" between the OW (Oh Why) hook and the OI (Oh I) phrase, there are also "significant differences" and that "such similarities are, however, only a starting point for a possible infringement action".

He also said that "compelling evidence" had been provided to show that Shape Of You "originated from sources other than 'Oh Why', and that claims Sheeran had heard the song before writing his own were "no more" than "speculative".

 

The allegations against Sheeran and his co-writers

 

Chokri and his co-writer Ross O'Donoghue had claimed the central "Oh I" hook in Shape Of You is "strikingly similar" to the "Oh Why" refrain in their own composition, with Chokri telling the court he felt "robbed" after he heard it. However, Sheeran, McDaid and McCutcheon all denied being aware of Oh Why prior to writing Shape Of You.

 

This was an unusual case in that it was Sheeran and his co-authors who originally launched legal proceedings, in May 2018, asking the High Court to declare they had not infringed any copyright. Two months later, Chokri and O'Donoghue issued their own claim for "copyright infringement, damages and an account of profits in relation to the alleged infringement".

 

Musicology experts gave contrasting views during the trial - with one telling the court it was "objectively unlikely" that any similarities between the tracks were a "result from copying", while another said they were "so numerous and striking that the possibility of independent creation is... highly improbable".

During two days spent in the witness box giving evidence, Sheeran told the court he is not an artist who "alters" words and music belonging to others to "pass as original", and refuted an allegation that he "borrows" ideas from unknown songwriters without acknowledgement.

 

He told the court he "always tried to be completely fair" in crediting people who contribute to his music. The star also denied using litigation to "intimidate" the less-famous songwriters, saying he was in court simply to "clear my name".

 

The judge's written conclusion

 

Now, after going through all the evidence, the judge has ruled in Sheeran's favour.

 

"While there are similarities between the OW Hook and the OI Phrase, there are also significant differences," he said in his written judgment. "As to the elements that are similar, my analysis of the musical elements of Shape more broadly, of the writing process and the evolution of the OI Phrase is that these provide compelling evidence that the OI Phrase originated from sources other than Oh Why.

 

"The totality of the evidence relating to access by Mr Sheeran to Oh Why (whether by it being shared with him by others or by him finding it himself) provides no more than a speculative foundation for Mr Sheeran having heard Oh Why.

 

"Taking into account the above matters, I conclude that Mr Sheeran had not heard Oh Why and in any event that he did not deliberately copy the OI Phrase from the OW Hook."

 

The judge also said that Sheeran, McCutcheon and McDaid were "unaware" the dispute had frozen £2.2 million in royalties from the song and had said they were only in court to "clear their names".

'An emphatic vindication of creative genius'

 

In a statement following the ruling, Sheeran's lawyers Simon Goodbody and Andrew Forbes, of Bray and Krais, said: "The judgment is an emphatic vindication of the creative genius of Ed, Johnny and Steve - as they have always maintained, they created Shape Of You together, without copying from anyone else."

 

On an unverified Instagram account, Chokri appeared to post a video shot by the sea following the ruling. While he did not address the judgment directly, he captioned the clip: "Through despair I found an instant highway to gratitude. I am rich, of love, friends, and family. This is the beginning not the end."

 

What do the experts say?

 

It is rare for copyright cases to get to court and "notoriously difficult" for songwriters claiming their copyright has been infringed to succeed.

 

Gill Dennis, copyright and brand protection expert at Pinsent Masons, said: "A claimant must prove, with hard evidence, that the defendant had access to the song in order to copy it. Even with this evidence, and where commonality is found, it does not necessarily prove copying, particularly where a defendant can create doubt by demonstrating that their work had different origins."

 

Isaac Murdy, intellectual property specialist at law firm Shakespeare Martineau, said the ruling indicated "that the UK intellectual property courts aren't going to support American-style speculative litigation".

 

He added: "It will take more than a short section of 'basic minor pentatonic pattern' which is 'entirely commonplace', to establish a successful claim of copyright infringement. All music is derivative to a certain extent, and in the words of Elvis Costello 'It's how rock & roll works'. This ruling shows that clear similarities throughout two songs are needed to form a substantial case."

 

Mike Gilbert, a partner at Marks & Clerk, a leading global intellectual property firm, said the judge's verdict did not come as a surprise, and "draws a clear line in the sand" for small artists considering bringing similar claims to court.

 

"The truth is, big artists are all too aware of the obligations they're under to pay credit where credit's due, and in the case of Ed Sheeran, are more than willing to acknowledge contributions where relevant."