Why Ed Sheeran’s copyright victory matters – by the lawyers who represented him.

The following statement comes from Simon Goodbody and Mark Krais, partner and co-founder of Bray & Krais Solicitors, the law firm that represented Ed Sheeran in his recent fight over copyright infringement in the UK. The case was brought against Sheeran by a British artist named Sami Chokri (aka Sami Switch), who claimed that Sheeeran ripped off his song Oh Why, which was released in 2015. The verdict was handed down in Sheeran’s favor in a British Supreme Court on Wednesday, 6 April.


Ed Sheeran, Johnny McDaid and Steve Mac recently won a court battle over their 2017 hit Form of you.

The case began when PRS suspended the song’s royalty account following a violation claim by songwriters Sami Chokri and Ross O’Donoghue in connection with their 2014 composition Why.

Never heard that, it Form of you songwriters sought a statement that they had not infringed copyright and the release of PRS revenue.

Chokri and O’Donoghue made counterclaims, claiming that Sheeran, McDaid and Mac had knowingly or unknowingly copied a short musical phrase from Why and seeking compensation or an account for Shape of You’s profits.

As evidence, McDaid referred to speculative allegations in the United States, noting a “culture” of “songs being dragged before juries,” resulting in adverse judgments.

Although American cases do not set a precedent here, great demands fall into this jurisdiction, as high-profile artists become targets for lesser-known songwriters.

US rising wave

Numerous U.S. infringement cases have arisen since Robin Thicke and co-authors of Blurred lines was convicted of infringing the copyright of Marvin Gaye’s hit Got to Give It Up and sentenced to pay Gaye’s property $ 7.3 million (where the court’s decision cited “the groove” and “feeling” as aspects of similarity or commonalities, which obscured the distinction between performance and compositional techniques).

Robert Plant and Jimmy Page had to prove it Stairs to heaven did not infringe the copyright of the song Taurus, written by Randy Wolfe. Katy Perry also endured a lengthy battle in connection with a six-note passage in her song Dark horsewhich Flame (Marcus Gray) claimed was copied from his composition Joyful Noise.

The Led Zeppelin duo was initially successful: a jury found that the two songs ‘were not similar in themselves’. That verdict was overturned when the judge was found to have distorted the jury by suggesting that ‘descending chromatic scales, arpeggios or short sequences of three tones’ were not protected by copyright and that they should have heard both songs. But a U.S. Court of Appeals reinstated the original ruling (and the U.S. Supreme Court subsequently rejected a petition to reopen the case).

Meanwhile, Perry was sentenced to pay Gray $ 2.78 million when a jury found that the controversial six-tone sentence in Dark Horse violated his previous work. But after stating that Gray ‘was trying to own basic building blocks of music, the musical alphabet that should be accessible to all’, Perry’s lawyers won on appeal. In March, a U.S. judge overturned the original ruling, saying that granting copyright protection to such material would be tantamount to “allowing an unfair monopoly on two-tone pitch sequences or even the small scale itself.”

Unsurprisingly, two separate claims have been made against Dua Lipa in connection with her hit Floating; the first by Artikal Sound System on their song Live Your Life and the second by songwriters L Russell Brown and Sandy Linze on two of their works.


Attempting to ride the wave in the UK?

In Smith v Dryden, a claim was made in July last year against the authors and publishers of Rudimental’s hit Waiting all night. The plaintiff, Kelly-Marie Smith, claimed that the song’s chorus had been copied from her unreleased ballad, Can you tell me. The elements that Smith claimed were copied corresponded to the lyrical line “tell me you need me” and the 3-pitch phrase to which it is sung, meaning that her claim was based on alleged copying of the literary and musical works in Rudimental’s composition.

In his judgment in Smith v Dryden, Justice Zacaroli noted that “although there are objective similarities between the choruses in both songs, there are differences which, in the context of a simple melody spanning only three different tones, are not insignificant. “. He added that it was ‘plausible’ that two people were trying to write a hit song in the genre of Waiting all night would perceive the text “tell me you need me” and put it to music comparable to Can you tell me. Similarly, the infringement in Sheeran against Chokri was alleged on the basis of a very brief Form of you passage used common features as another short passage in Why.

“It is hoped that the United States will appeal Dark horse and the findings of the British court in Smith v Dryden and Sheeran v Chokri signal the end of a harmful, regressive culture of speculative claims over common and, critically, much-loved musical elements. “

Simon Goodbody and Mark Krais, Bray & Krais Solicitors

The distinction between musical and lyrical works, as defined by [UK’s] The Copyright, Designs and Patents Act (CDPA) 1988, is crucial. The claim against Sheeran focused exclusively on the musical work, ‘consisting of music, exclusive words or actions intended to be sung, spoken or performed with the music’. Given the extent of the alleged similarity, it corresponded to a two-bar musical phrase repeated three times through Shape of You over the text ‘Oh I, Oh I, Oh I, Oh I’, referred to as “Oh I Post- Chorus “”, which is said to reproduce a musical phrase sung to the words ‘Oh why, oh why, oh why, oh’. In isolation, the relevant sentence is a full 15 seconds Form of you.

Expert musicologist Anthony Ricigliano noted that the Oh I Post-Chorus includes the first four notes of “humanity’s favorite scale” – the mole pentatonic. In accordance with the Smith v. Dryden judgment, it was argued that reproduction of these notes in the same order as the scale is more likely to be random than copying. The appellate judge’s warning not to unfairly restrict creativity by imposing improper protection on common compositional elements in the Katy Perry / Dark Horse case and comments on “the basic building blocks of music” and “the alphabet of music” resonated throughout Sheeran v Chokri.


Referring to the similarities between the songs, Zacaroli J in Sheeran v Chokri emphasized ‘that it is important to note that all these features are common, however, and their use in Shape can be easily explained by other conditions.’ He accepted Ricigliano’s evidence and explained that “the use of the first four notes of the rising mole pentatonic scale for the melody is so short, simple, ordinary and obvious in the context of the rest of the song that it is not credible that Mr. Sheeran sought inspiration from other songs to come up with it. ‘

He concluded that Chokri and the other defendants had ignored important differences between the compositions and “the fact that each element is a common building block in the music of this and many other genres, and the use of the same or similar elements in other parts of Shape and in other Ed Sheeran songs. ‘

Infringement allegations in both cases lacked access: meaning that it must be established that alleged infringers had access to the previous work. In Smith v Dryden, proposition that Waiting all night authors had prior access to Can you tell me was ‘extremely weak’ and relied on ‘weak links’. Failure to establish access was repeated in Sheeran v Chokri. Zacaroli J rejected all the alleged access routes that Sheeran could have heard Oh Why.

UK copyright law imposes detailed tests for infringement claims. Their nuances surpass a jury’s opinion of two similar audio recordings – a seemingly decisive factor in many American cases. Although the complexities of the CDPA make few headlines, Smith v Dryden and Sheeran v Chokri identify the threshold that potential plaintiffs face.

Recent decisions may signal a reversal of the flow. It is hoped that the United States will appeal Dark horse and the findings of the British court in Smith v Dryden and Sheeran v Chokri signal the end of a harmful, regressive culture of speculative claims over common and, critically, much-loved musical elements.Music business worldwide

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