Oh I v O Why: Ed Sheeran defeats Shape of You copying allegations
Ed Sheeran celebrates defeating allegations that he deliberately or subconsciously copied a short “hook” in his song, Shape of You – the first song to exceed 3 billion listens on Spotify – from a song written by grime artist, Sami Switch.
Sheeran stood accused of being a musical “magpie” who “habitually copies” the songs of other artists. Specifically, it was alleged that the post-chorus phrase, “Oh I, oh I, oh I”, in Shape of You was copied from the similar phrase, “Oh why, oh why, oh why”, in Sami Switch’s song, “Oh Why” (somewhat fewer listens on Spotify). Both are sung to the first four notes of a rising minor pentatonic scale.
In a genuinely fascinating judgment, which not only casts light on the “incredible speed” at which Sheeran knocks out hits and his collaborative writing process, but which is also accompanied by a soundtrack of hits highlighted by both parties to support their respective cases (some of which Sheeran sang in court, whilst giving evidence), the High Court dismissed the allegations.
Whilst there are similarities between the two musical phrases, that is not enough to establish copyright infringement. There are also significant differences, the minor pentatonic pattern is commonplace and efforts to establish that Sheeran and his co-writers had knowledge of “Oh Why” (apparently played only twice on live radio, the subject of unsuccessful social media publicity and played at two live shows, each to no more than 200 people) failed to convince the judge.
Copyright notes
Copyright subsists in original musical works (a separate literary copyright may exist in song lyrics)
Copyright in a musical work may be infringed if the original work, or a substantial part of it, is copied
What amounts to a substantial part is a qualitive test, rather than a quantitative one. So, it is possible for a short, catchy hook to qualify protection. What matters is whether the defendant has taken a part which contains elements of the expression of the intellectual creation of the author of the work – a part which gave the work its originality
Infringement requires actual copying, which may be deliberate or subconscious
For more information, do contact: russell.beard@bakerskelly.com
The above is intended as general commentary only and is not intended as a substitute for specific legal advice. It also relates to the law of England and Wales only and no other jurisdictions.
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