Ed Sheeran wins “Shape of You” copyright infringement lawsuit

On 6 April 2022, a judgement was handed down in the United Kingdom’s High Court of Justice in Sheeran & Ors v Chokri & Ors [2022] EWHC 827(Ch) in relation to a copyright claim against singer and songwriter Ed Sheeran (Sheeran).  It was held that Sheeran neither deliberately or subconsciously copied part of the defendants’ song “Oh Way” and used it in “Shape of You”.  This article discusses the factors considered in Sheeran and the test for copyright infringement as it applies in Australia.

Background to the case

In the case of Sheeran, the defendants put forth the argument that Sheeran’s song Shape of You  was deliberately or subconsciously copied from the song “Oh Why”, which was written by Sami Chokri and Ross O’ Donoghue in 2015.  Specifically, the defendants referred to a phrase within the eight-bar chorus of “Oh Why”, which they contend Sheeran copied and replaced with the words “Oh I” in Shape of You.

The proceedings commenced in 2018 after the defendants notified the Performing Rights Society Limited of their claim that they should be credited as the writers of the Shape of You song.  This argument was rejected by the judge, who stated:

“The evidence relating to access by Mr Sheeran to Oh Why provides no more than a speculative foundation for Mr Sheeran having heard Oh Why.”

Tests used by the Court in Sheeran

The judge considered three (3) factors of the defendants claim as:

  • the likelihood that Ed Sheeran could have accessed the allegedly copied song to consciously or unconsciously copy it (Factor 1);
  • the similarities and/or differences between the two works and the significance (Factor 2);
  • Mr Sheeran’s alleged tendency to copy and conceal (Factor 3).

Factor 1 was a question of fact to determine whether deliberate or subconscious copyright had occurred.  The judge found that Sheeran had not heard the song before, because the arguments provided by the defendants were not substantial to prove otherwise.

In considering Factor 2, the judge stated that the phrases in question both played different parts in their respective songs as a whole, and the tones were complete opposites, which meant there could not have been any copyright.

Finally, in relation to Factor 3, the defendants attempted to rely on Sheeran’s previous copyright disputes to demonstrate a pattern of behaviour, however the judge rejected this argument.

Copyright infringement in Australia

In Australia the Copyright Act 1968 (Cth)(Act) governs whether copyright exists in original words.  The term “works” means literary, dramatic, music or artistic work.  Section 32 of the Act details what is considered an original work in which copyright subsists.

Section 36 of the Act deals with infringement by doing acts comprised in the copyright.  Pursuant to section 36(1) of the Act:

“…the copyright in a literary, dramatic, musical or artistic work is infringed by a person who, not being the owner of the copyright, and without the licence of the owner of the copyright, does in Australia, or authorizes the doing in Australia of, any act comprised in the copyright.”

Further, section 36(1A) states:

“In determining, for the purposes of subsection (1), whether or not a person has authorised the doing in Australia of any act comprised in the copyright in a work, without the licence of the owner of the copyright, the matters that must be taken into account include the following:

                      (a)  the extent (if any) of the person’s power to prevent the doing of the act concerned;

 (b)  the nature of any relationship existing between the person and the person who did the act concerned;

 (c)  whether the person took any reasonable steps to prevent or avoid the doing of the act, including whether the person complied with any relevant industry codes of practice.

Copyright infringement can occur when a person uses someone else’s content without their permission as well as when a person:

  • sells infringing articles;
  • imports articles that contain infringing copyright material; or
  • facilitates or authorises an unlicensed use by another person.

Australian case examples of copyright infringement

Australian case law details the relevant tests in instances of alleged copyright infringement.

In Milpurrurru v Indofurn Pty Ltd [1994] FCA 1544 209, von Doussa J held that four (4) main factors are used when determining whether a copyright claim exists:

  • the volume of the material taken (quality over quantity);
  • how much of the material is the subject-matter of copyright and how much is not;
  • whether there been intention to steal by the defendant; and
  • the extent to which the plaintiff’s and the defendant’s works are competing works.

In 1977, Harry Vanda and George Young composed the song “Love is in the air” (Love). In Boomerang Investments Pty Ltd v Padgett [2020] FCA 535 , the applicants (Boomerang) claimed to be the owner of the copyright of the song Love.  They put forth allegations that the song “Warm in Winter” composed in 2008 by Glass Candy copied a substantial part of Love and furthermore that an Air France campaign created by Glass Candy in 2015 copied a large amount of Love as well.

Usually, Australian Courts view songs as two (2) separate categories in copyright:

  • the music (musical work); and
  • the lyrics (literary work).

In Boomerang, Perram J applied a three (3) prong test:

  • what category of copyright does the work fall under?
  • what portions of the original work have been used in the alleged copied work?
  • does the original work form a substantial part of the copied work?

Justice Perram decided that the song lyrics and musical work in the line “love is in the air” is an essential part of the song.  Furthermore, the song lyric and musical work in the line “love is in the air” in Warm and in the Air France campaign are objectively similar to the original “Love is in the air”.  In conclusion, it was held that Glass Candy did in fact deliberately copy the musical work of the original “Love is in the air”.

This judgement demonstrates that the sound of the lyrics of a song, qualify as part of the musical work and that a ’substantial part’ of a musical work does not necessarily have to be lengthy.  A mere line is sufficient.

Takeaways

Copyright infringement of musical works is a rather common occurrence within the intellectual property sphere. The above case whilst not determined under Australian law is similar to the the approach used by Australian Courts when deciding copyright infringement matters. .. The approach to the assessment of whether infringement has in fact incurred will depend on the facts of the particular case.

Links and further references

Related articles

How much copying results in copyright infringement?

Innocent infringement of copyright

Groundless threats of copyright infringement

Palmer breaches copyright – liable for $1.5m AUD in damages

s115A Copyright Act – infringement outside Australia

Legislation

Copyright Act 1968 (Cth)

Cases

Boomerang Investments Pty Ltd v Padgett [2020] FCA 535

Milpurrurru v Indofurn Pty Ltd [1994] FCA 1544 209

Sheeran & Ors v Chokri & Ors [2022] EWHC 827 (Ch)

Further information

If you need advice on copyright infringement contact us for a confidential and obligation free discussion:

Malcolm BurrowsMalcolm Burrows B.Bus.,MBA.,LL.B.,LL.M.,MQLS.

Legal Practice Director

Telephone: (07) 3221 0013 (Preferred)

Mobile: 0419 726 535

e: mburrows@dundaslawyers.com.au

 

 

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

 

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