Sheeran and others v Chokri and others [2022] EWHC 827 (Ch)

Ed Sheeran and his co-writers were declared not to have infringed copyright in Sami Chokri's song "Oh Why" through the "Oh I" post-chorus of "Shape of You". Zacaroli J found neither deliberate nor subconscious copying, granted the declaration and dismissed the counterclaim.

Facts

The first three claimants, Ed Sheeran, Steven McCutcheon and John McDaid, wrote the song “Shape of You” (“Shape”), released in January 2017 and subsequently one of the most commercially successful songs ever recorded. The fourth to sixth claimants are music publishing companies owning shares in the rights in Shape.

The first two defendants, Sami Chokri (performing as Sami Switch) and Ross O’Donoghue, wrote “Oh Why”, released in March 2015 and included on Mr Chokri’s EP “Solace”. The third defendant is the assignee of Mr Chokri’s copyright in Oh Why.

The dispute concerned an eight-bar post-chorus section of Shape in which the phrase “Oh I” is sung to the first four notes of the rising minor pentatonic scale (which Zacaroli J neutrally called the “OI Phrase”), said to have been copied from the eight-bar chorus of Oh Why, in which “Oh why” is sung to the same first four notes of the rising minor pentatonic scale (the “OW Hook”).

After the defendants notified the Performing Rights Society of their claim to a songwriting credit, causing PRS to suspend payments to the claimants, the claimants issued proceedings in May 2018 seeking declarations of non-infringement. The defendants counterclaimed for infringement.

Subsistence of copyright in Oh Why was common ground. By the end of cross-examination, the defendants no longer alleged that Mr McDaid or Mr McCutcheon had copied, whether deliberately or subconsciously; the allegation of copying was directed only at Mr Sheeran.

Issues

The judge identified the following issues:

• Whether Mr Sheeran consciously and deliberately copied the OW Hook in creating the OI Phrase, and whether the evidence of similarity and access was sufficient to shift the evidential burden onto the claimants;
• Alternatively, whether there was subconscious copying, which required proof of familiarity with Oh Why and a causal link between the works;
• If copying were established, whether the similar elements of the OW Hook represented the expression of the intellectual creation of Mr Chokri and Mr O’Donoghue, and whether they were protectable as conferring originality on Oh Why;
• Whether, if there was no infringement, the court should nonetheless refuse the declaratory relief sought on discretionary grounds.

Arguments

The defendants (Mr Sutcliffe QC)

The defendants argued that there was sufficient similarity between the works, clear evidence of access, and other indicia of copying such that the evidential burden should shift to the claimants. They relied on: the extent of similarity, including the alleged “one-in-a-million” chance of the combination of features coinciding and the absence of anything comparable in 250 years; various alleged routes of access to Oh Why (including through Jamal Edwards, Jake Roche, Jake Gosling/Sticky Studios, Benny Blanco, Sarah Liversedge and A&R executives such as Daniel Lloyd-Jones and Ed Howard, or Mr Sheeran finding the song himself while following the “UK scene”, searching for new talent for his label, or looking for another song in the style of “Bloodstream”); and an alleged propensity to collect ideas in advance and habitually to copy, “reference” or “interpolate” other artists. As similar fact evidence they relied on “Photograph” (compared to “Amazing”), an early pre-chorus of Shape referencing “No Scrubs”, “Strip That Down” (compared to “It Wasn’t Me”), “Lift Me Up” (compared to “Lay Lady Lay”) and lyrics from “Take It Back” said to amount to an admission of plagiarism. Mr Sheeran’s evidence was characterised as “riddled with inconsistencies, evasiveness, and confusion” and on occasion untruthful. They also identified three “fingerprints” of Mr Chokri in Mr Sheeran’s work: lyrical similarities between “Eraser” and “Trying to Breathe”; a “high G” in one take of the OI Phrase; and Protools sound files labelled “Oh Why”. Finally, they resisted the declaration on discretionary grounds (no real commercial basis, prematurity and non-compliance with pre-action protocols, disclosure failings, and the alleged lack of independence of the claimants’ pre-action musicologist Mr Oxendale).

The claimants (Mr Mill QC)

The claimants denied any copying, contending that Shape was written from scratch at Rokstone Studios on 12 October 2016, that the musical elements relied on were commonplace building blocks found throughout Shape and in other Sheeran songs, and that there was no evidence Mr Sheeran ever heard Oh Why. They also contended that the similar elements were not protectable, and that the OW Hook itself was not original (it was said to derive from Mr Sheeran’s cover of a version of “Wayfaring Stranger”). They sought a declaration of non-infringement.

Judgment

The witnesses

Zacaroli J found all witnesses were doing their best honestly to assist the court, and specifically rejected the attack on Mr Sheeran’s credibility:

“At the outset, however, I stress that I reject Mr Sutcliffe’s characterisation of Mr Sheeran’s evidence. On the contrary, I consider that Mr Sheeran, too, was doing his best honestly to assist the court.” (at [18])

The legal framework

The judge set out the familiar principles: copyright subsists in original musical works under ss.1(1) and 3(1)(b) of the Copyright, Designs and Patents Act 1988; copying means reproducing the work in any material form (s.17(2)); and infringement requires copying of the work or a substantial part of it (s.16(3)(a)), which is a qualitative question — whether the part taken contains elements which are the expression of the intellectual creation of the author: Newspaper Licensing Agency Ltd v Meltwater Holding BV [2011] EWCA Civ 890 at [24]–[28], applying Infopaq International A/S v Danske Dagblades Forening [2009] E.C.D.R. 16; and whether the defendant has taken that which conferred originality on the claimant’s work: Mitchell v BBC [2011] EWPCC 42 at [28]–[29]. He cited Lord Millett’s approach in Designers Guild v Russell Williams [2000] 1 WLR 2416 at p.2425E-F, and noted that in music cases the sounds matter more than the notes, depending largely on the aural perception of the judge (Francis Day & Hunter v Bron [1963] 1 Ch 587, per Upjohn LJ at p.618).

On the burden of proof, the judge accepted that the legal burden rests on the party alleging infringement, but that in conscious copying the evidential burden may shift where there is proof of sufficient similarity and proof of access (Designers Guild; Baigent v Random House [2007] EWCA Civ 247). He emphasised a fact-sensitive approach:

“Tens of thousands of new songs are uploaded to internet sites daily. It clearly cannot be enough to shift the burden of proof that a song was uploaded to the internet thereby giving the alleged infringer means of accessing it. In every case, it must be a question of fact and degree whether the extent of the alleged infringer’s access to the original work, combined with the extent of the similarities, raises a sufficient possibility of copying to shift the evidential burden.” (at [25])

He added that where the original work is highly individual or intricate and the alleged infringing work very close to it, limited evidence of access may suffice, but not where the original is simple and involves relatively common elements. For subconscious copying, he applied Francis Day & Hunter v Bron, requiring proof of familiarity and a causal link, approached as a question of fact on all the evidence, and adopting the composite factors approved by the Court of Appeal from Wilberforce J’s direction to himself.

Similarities and differences

The judge conducted his own aural and analytical comparison. He identified similarities: use of the first four tones of the rising minor pentatonic scale, repetition of the tones, the aurally indistinguishable “Oh I”/”Oh why” vocalisation, octave harmonisation and “call and response” structure. But he identified important differences: the quaver rest at the start of the OW Hook (so that “why” falls on the beat and is stressed, giving seven notes rather than eight); the markedly different mood (slow, dark and questioning versus faster, brighter and upbeat); a discernible passing “b” in the OW Hook which he found was not merely a feature of performance; subtle harmonic differences; and marked melodic and rhythmic differences in the responses. He expressly disagreed with the defendants’ expert Mr Siddell on the significance of the quaver rest and the audibility of the “b”, stressing (citing Copinger) that evaluating the factual evidence and deciding copying and substantial part are matters for the court alone.

Alternative sources within Shape

The judge found that the melodic contour of the OI Phrase (rising from A to E and falling back) appears throughout Shape — in the pre-chorus, chorus and last line of the post-chorus — and that the marimba riff underpinning the whole song, looped throughout the writing session, constantly repeats the pattern A, C, D, E. He described the first four notes of the minor pentatonic scale as the “unifying feature” of the song, which the writers had “in their DNA”. He also noted numerous comparable examples in other songs (including “(You Drive Me) Crazy”, “Heartbreaker” and “No Diggity”) and in Mr Sheeran’s own back catalogue. The other allegedly similar features — quaver rhythm, vocal chant with octave harmonies, oscillating vowel sounds — were commonplace and readily explained otherwise.

The evolution of the OI Phrase

Based on the Logic and Protools files, voice notes and witness evidence, the judge made detailed findings about the writing session of 12 October 2016, accepting that Mr Sheeran attended intending to write songs for other artists and that Shape was written from scratch that day. He rejected the suggestion that Mr Sheeran’s recorded comment that something “might be a bit close to the bone” referred to Oh Why, finding instead that it related to the resemblance of a “heya” chant to “No Diggity”, a song Mr Sheeran had himself recorded live. He gave three reasons, including the illogicality of adopting, rejecting and then reinstating an idea recognised as infringing, and the fact that Mr McDaid and Mr McCutcheon were not alleged to be privy to any copying.

He rejected the “full circle” argument, finding that the demo at the end of 12 October 2016 sounded very different from the OW Hook (a stacked choral effect with no discernible lead melody), and that the later coalescence into a simple lead melody with octave harmonies during mixing sessions reflected a natural evolution. He also rejected the contention that the speed of writing indicated copying, and found nothing suspicious in the deletion of other voice notes by Mr McDaid.

He addressed inconsistencies between Mr Sheeran’s trial evidence and promotional interviews, preferring the trial evidence and giving less weight to interviews “the purpose of which was promotion and entertainment” (at [56]). He also found that the impression created in the “Songwriter” film that Mr Sheeran had Shape in his head on 1 September 2016 was artistic licence, the unedited footage showing the song in mind was a different idea.

Access

The judge examined each alleged access route in detail and rejected them: Oh Why had been played on the radio only twice, had achieved fewer than 13,000 YouTube views in over two years, and promotion had been, as Mr Chokri accepted, “amateurish”. He found that only a single track, “Solace (Nearly Home)”, was sent to Ed Howard by Mr Lloyd-Jones, and that Mr Howard did not receive or hear Oh Why in 2015. He found that Jamal Edwards had the Solace EP drawn to his attention but there was no evidence he listened to it or shared it with Mr Sheeran, and that Oh Why was never shared with Mr Sheeran by Mr Edwards. The Jake Roche and Jake Gosling routes were “flimsy” or founded on unrealistic inferences; the Benny Blanco route was unpleaded and “mere speculation” which he discounted entirely; the Liversedge route was not pressed. He also rejected the contentions that Mr Sheeran would have found the song himself through the “UK scene” (finding Mr Chokri and Mr Sheeran were describing quite different “scenes”, and accepting that Mr Sheeran was largely “off-grid” from the end of 2015), through his record label (which had signed only three artists in total), or while seeking inspiration for a “Bloodstream”-type song (the theory that “Eraser” derived from “Trying to Breathe” being rejected). He concluded that the possibility of Oh Why reaching Mr Sheeran was “at best speculative” (at [146]).

Similar fact evidence

Applying Mood Music Publishing Co v De Wolfe Ltd [1970] 1 Ch 119 (evidence of other instances of copying is admissible provided it is not oppressive or unfair and fair notice is given), the judge rejected reliance on occasions where Mr Sheeran had openly referenced and credited others, holding there was “nothing of probative value in them” and that a habit of openly crediting others makes deliberate theft less likely (at [150]). On “Photograph”/”Amazing” he found undoubted similarities but held that similarity alone does not establish copying, still less deliberate copying, noting the simplicity and “obvious” nature of the melody, the commonplace four-chord sequence, and that Mr McDaid (an unchallenged co-writer who had not heard “Amazing”) co-wrote the chorus; the large US settlement reflected commercial risk, including the risk of a finding of subconscious copying, not an admission of conscious copying. On “No Scrubs” he found, as a matter of English law, insufficient similarity for the released version of Shape to reproduce a substantial part. On “Strip That Down”/”It Wasn’t Me” he found the conduct — obtaining clearance — reinforced the conclusion that Mr Sheeran was open and honest, and that any allegedly misleading terms in clearance emails did not implicate him. The “Lift Me Up”/”Lay Lady Lay” point failed the fairness test in Mood Music and in any event failed on the merits. He rejected the reliance on the “Take It Back” lyrics as an admission, describing as incredible the proposition that Mr Sheeran had a habit of plagiarism and decided to publicise it.

Conclusions on copying

The judge accepted the invitation to stand back but reached the opposite conclusion to the defendants, holding that it was the defendants who had focused on points of similarity while ignoring differences, the commonplace nature of each element, and their use elsewhere in Shape and in other Sheeran songs. He observed:

“The use of the first four notes of the rising minor pentatonic scale for the melody is 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.” (at [203])

He concluded at [205] that although there were similarities there were also significant differences; that the analysis of Shape’s broader musical elements, the writing process and the evolution of the OI Phrase provided “compelling evidence that the OI Phrase originated from sources other than Oh Why”; that the access evidence was no more than speculative; that Mr Sheeran had not heard Oh Why and did not deliberately copy; that the evidence of similarity and access was insufficient to shift the evidential burden, the defendants had failed to discharge the legal burden, and that even if the evidential burden had shifted the claimants had established the absence of deliberate copying; and that there was no subconscious copying either.

Obiter conclusions on originality

Although the remaining issues did not arise, the judge briefly expressed conclusions at [206]. He was satisfied that the relevant elements of the OW Hook represented the expression of the intellectual creativity of Mr Chokri and Mr O’Donoghue, rejecting the claimants’ contention that the OW Hook was itself copied from Mr Sheeran’s cover of a version of “Wayfaring Stranger”. He accepted that no individual element of similarity in itself conferred originality on Oh Why (the rising minor pentatonic scale, note repetition, vocal chant and octave harmonisation all being generic and commonplace), but would have concluded that the combination of those features sufficiently represented the writers’ intellectual creativity, observing that setting music to a distinct vocal sound may be considered part of the orchestration of a musical work (citing Hayes v Phonogram Ltd [2003] ECDR 11, per Blackburne J at [60]).

Relief

Applying the discretionary framework in Financial Services Authority v Rourke [2002] CP Rep 14 (justice to the claimant, justice to the defendant, useful purpose and special reasons) and Nokia Corp v InterDigital Technology Corp [2006] EWCA Civ 1618, the judge granted the declaration. He held that the £2.2m of suspended royalties was itself a substantial sum providing commercial justification, and that the songwriters’ desire to clear their names — particularly Mr Sheeran, against whom a “magpie” case of habitual copying and concealment had been advanced and rejected — increased the justification. He rejected the objections based on prematurity and pre-action protocol non-compliance (the claimants having given fair warning and the defendants having since maintained and widened their attack), disclosure failings (already dealt with by prior applications and costs orders), and the alleged lack of independence of Mr Oxendale.

Implications

The decision is a first-instance application of established principles rather than a departure from them, but it is significant in several respects for music copyright practice.

First, it reinforces that both conscious and subconscious copying claims require proof that the alleged infringer actually heard the earlier work: “infringement requires there to have been actual copying, which necessarily entails that the alleged infringer not only had access to the original work, but actually saw or heard it” (at [26]). Mere availability online is insufficient. The judge’s observation at [25] that the shifting of the evidential burden is a question of fact and degree, calibrated to the individuality of the original work and the closeness of the alleged copy, is likely to be of practical use where claims rest on short, simple musical phrases.

Second, the judgment illustrates the weight given to contemporaneous evidence of the creative process. The Logic and Protools session files, timed voice notes and demo versions enabled the judge to trace the evolution of the disputed phrase and to find alternative sources for it within the song itself. This underscores the practical value to songwriters and producers of retaining session files and writing-session recordings.

Third, the judgment confirms the limits of the expert musicologist’s role: the expert may collate comparative examples and assist on musical analysis, but the evaluation of the factual evidence and the determination of copying and substantial part are matters for the court, which relies significantly on its own aural perception. Here the judge expressly disagreed with the defendants’ expert on several points.

Fourth, on similar fact evidence, the decision applies Mood Music but draws a clear distinction between deliberate, credited “referencing” or interpolation (which the judge held had no probative value on a charge of covert copying) and covert taking. Points raised for the first time in cross-examination were held to fail the fairness requirement of fair notice. The judge also declined to treat a substantial US settlement as an admission of conscious copying, recognising that settlements may reflect litigation risk, including the risk of a finding of subconscious copying.

Fifth, the discretionary discussion of declaratory relief confirms that both a substantial commercial interest (here suspended royalties of £2.2m) and reputational vindication may justify granting negative declarations of non-infringement, and that alleged prematurity or pre-action protocol shortcomings will not necessarily defeat such relief, particularly where the claimant had given fair warning and the allegations were subsequently maintained and widened.

The limits of the decision should be noted. It turns on findings of fact about a particular song, a particular writing session and a particular set of alleged access routes; it does not lay down any general rule that short pentatonic phrases can never be protected. Indeed, the judge’s obiter view at [206] was that, although no individual element of the OW Hook was original, the combination of features would have sufficiently represented the intellectual creativity of Mr Chokri and Mr O’Donoghue. He also expressly declined to reach a conclusion on whether “Photograph” involved subconscious copying of “Amazing”, and did not decide who first suggested changing “heya” to “oh I” (observing that on that discrete point neither side would have discharged the burden). The decision matters most to songwriters, producers, publishers, collecting societies and their advisers, both as an illustration of the evidential burden facing a claimant alleging copying of commonplace musical building blocks, and as a caution about the use of royalty suspension at collecting societies as a step which may precipitate declaratory proceedings.

Verdict: The claim succeeded and the counterclaim failed. Zacaroli J held that Mr Sheeran had not heard “Oh Why”, did not deliberately copy the “OW Hook” in creating the “OI Phrase” in “Shape of You”, and did not subconsciously copy it either; the defendants failed to discharge the burden of establishing copying, and the evidence of similarity and access was in any event insufficient to shift the evidential burden. Exercising his discretion, the judge granted the claimants the declaration sought that in creating and exploiting “Shape of You” they had not infringed copyright in “Oh Why”, rejecting each of the defendants’ discretionary objections, and the counterclaim for infringement was dismissed.

Source: Sheeran and others v Chokri and others [2022] EWHC 827 (Ch)