Ed Sheeran wins High Court copyright battle with Sami Switch over Shape Of You

Ed Sheeran has won a High Court battle over whether his 2017 hit Shape of You copied another artist’s song.

Wednesday, 6th April 2022, 9:58 am
Updated Wednesday, 6th April 2022, 10:50 am

At a trial last month, the singer and his Shape Of You co-writers, Snow Patrol’s John McDaid and producer Steven McCutcheon, faced accusations that they ripped off the 2015 song Oh Why by Sami Chokri and Ross O’Donoghue.

In a ruling on Wednesday, Mr Justice Zacaroli concluded Sheeran “neither deliberately nor subconsciously” copied a phrase from Oh Why when writing Shape Of You.

Reacting to the ruling, the Shape of You co-writers said in a joint statement that the case had come at a cost on “creativity” and on their mental health.

Ed Sheeran has won his high court battle

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    “When we are tangled up in lawsuits, we are not making music or playing shows,” they said, adding: “There is an impact on both us and the wider circle of songwriters everywhere.

    “Our hope in having gone through all of this is that it shows that there is a need for a safe space for all songwriters to be creative, and free to express their hearts.”

    Sheeran and his co-authors originally launched legal proceedings in May 2018, asking the High Court to declare they had not infringed Chokri and O’Donoghue’s copyright.

    Two months later, Chokri – a grime artist who performs under the name Sami Switch – and O’Donoghue issued their own claim for “copyright infringement, damages and an account of profits in relation to the alleged infringement”.

    The pair alleged that an “Oh I” hook in Shape Of You is “strikingly similar” to an “Oh Why” refrain in their own track.

    But in his judgment, Mr Justice Zacaroli concluded “Mr Sheeran had not heard Oh Why and in any event that he did not deliberately copy the Oh I phrase from the Oh Why hook”.

    He added: “Mr Chokri is undoubtedly a serious and talented songwriter and while his management were unsurprisingly trying to create some hype around the release of the Solace EP, it had limited success.

    “In my judgment, the possibility that these attempts might have led to it coming to Mr Sheeran’s attention – either because someone he was associated with played it to him or because he found it himself – is at best speculative.”

    The judge said the phrases in the songs at the heart of the legal dispute “play very different roles”, with the Oh Why hook reflecting the track’s “slow, brooding and questioning mood”, while Shape of You’s Oh I phrase was “something catchy to fill the bar” before the next part of the song.

    He continued: “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.”

    During the 11-day trial at the Rolls Building in London, Sheeran denied he “borrows” ideas from unknown songwriters without acknowledgement and insisted he “always tried to be completely fair” in crediting people who contribute to his albums.

    The singer told the court he was trying to “clear my name” and denied using litigation to “intimidate” Chokri and O’Donoghue into abandoning the copyright dispute.

    Lawyers for the Oh Why co-writers labelled Sheeran a “magpie”, alleging he “habitually copies” other artists and that it was “extremely likely” he had previously heard Oh Why.

    Chokri told the trial he felt “robbed” by the music star and was “shocked” when he first heard Shape Of You on the radio.

    But lawyers for Sheeran, McDaid and McCutcheon said the allegations against them were “impossible to hold”, with the evidence pointing to Shape Of You being an “independent creation”.

    Sheeran was present throughout the trial in March and frequently burst into song and hummed musical scales and melodies when he took to the witness stand.

    In one brief incident, the court was accidentally played a clip of unreleased material by Sheeran from McCutcheon’s computer.

    All three Shape Of You co-authors denied allegations of copying and said they did not remember hearing Oh Why before the legal fight.

    Ian Mill QC, representing the three men, said the legal dispute had been “deeply traumatising”, arguing the case should never have reached trial.

    But the Oh Why co-writers’ lawyer, Andrew Sutcliffe QC, alleged Sheeran is an artist who “alters” words and music belonging to others to “pass as original”.

    He claimed Sheeran’s lawyers brought the legal proceedings because PRS for Music – the industry body that collects and distributes royalties – had “frozen” payments for UK broadcast and performance income from Shape Of You.

    It was also claimed Sheeran must have been aware of Chokri because they appeared on YouTube channel SBTV at about the same time, they shared friends, Chokri had sent messages to him on Twitter, and Sheeran had allegedly shouted his name at a performance.

    Mr Sutcliffe suggested Sheeran “consciously or unconsciously” had Oh Why in his head when Shape Of You was written at McCutcheon’s Rokstone Studios in west London in October 2016.

    But Mr Mill said the Shape Of You co-writers were clear they had “no preconceived ideas” when they went into the studio.