Chokri & Others v Sheeran & Others [2022] EWHC 827 (IPEC)

Ed Sheeran is no stranger to copyright infringement claims, having successfully defended multiple claims regarding some of his most famous songs such as “Photograph” and “Thinking Out Loud.”

“Shape of You”, the best performing song in the world in 2017, has also recently been under scrutiny after the grime artist Chokri claimed it was copied from his song, “Oh Why.”

Background

Following the release of “Shape of You” in 2017, Chokri and his co-writer O’Donoghue wrote to the Performing Right Society for Music (PRS) claiming to have an interest in “Shape of You” and asking to receive royalties from the song.

PRS subsequently suspended all royalty payments, a lucrative income stream, to Sheeran pending resolution of the dispute.

The Case

In Chokri & Others v Sheeran & Others [2022] EWHC 827 (IPEC), quite unusually Sheeran and his co-writers McCutcheon and McDaid brought a claim against Chokri and O’Donoghue, seeking a declaration of non-infringement. Chokri then countersued for copyright infringement.

Musical compositions

Notably Chokri only claimed the ‘Oh Why’ hook, a small section of the song, had been copied by Sheeran and used in the ‘Oh I’ hook, a small section within “Shape of You”. Specifically, Chokri alleged that the musical work had been copied; that Sheeran had copied the musical composition of the hook, exclusive of words.

In order to succeed in his copyright infringement claim, Chokri had to overcome four hurdles:

1. Did an original copyright work subsist;

2. Was there an opportunity to copy (access);

3. Was there substantial copying in whole or in part; and

4. Damage.

In this case, the dispute centred on 2 and 3.

Access

Within any copyright claim, for a work to have been copied, there must have been an opportunity to copy. A hurdle Chokri would find challenging to overcome and ultimately fail.

For his claim to succeed, Chokri had to prove that Sheeran had access to his song prior to the creation of the ‘Oh I’ hook. While Sheeran claimed he didn’t believe he had ever heard the song, Chokri strongly argued that Sheeran must have heard it and either consciously or subconsciously copied it. His “evidence” of potential access points included:

· Social media posts that advertised the track – none had any material success.

· Radio plays of “Oh Why” – two radio plays and both were late at night.

· Live gigs – Chokri played the song at two live gigs however he produced no evidence that Sheeran or anyone known to him attended the gigs.

· Chokri sent the song to mutual connections of Sheeran, such as Benny Blanco – there was no evidence that any of the mutual connections, some quite removed from Sheeran, ever sent him or were asked to send him “Oh Why.”

· There was evidence Sheeran was active in the UK music scene and looking for talent – being active in the music scene was not found to amount to Sheeran having come across Chokri.

Judge Zacaroli found all of Chokri’s evidence to be speculative. The Judge found there was no evidence of conscious or subconscious copying. He explained that releasing a song on social media/Spotify does not create a general inference of access. Additionally, for subconscious copying to occur, there must be familiarity, not just theoretical possibility. Finally, “Oh Why” had limited exposure and marketing efforts did not make it likely Sheeran encountered the song.

Consequently, the access limb failed and Chokri’s counterclaim was dead in the water.

Outcome

For various reasons, including that there was no evidence to indicate Sheeran had no opportunity to copy “Oh Why”, Chokri’s counterclaim failed and Sheeran’s claim for a declaration on non-infringement was awarded.

The case proves a useful reminder that copyright does not create a monopoly right. If a third party independently creates their own work, that may be similar to another, there needs to be an act of copying for infringement to have occurred. Coincidences in music are bound to happen, especially considering there are a binary number of notes that can be used to create a musical composition. Under copyright, coincidence is fair game so, unless you have strong evidence of an opportunity to copy, maybe think twice before claiming infringement – you may end up like Chokri, asking yourself… ‘Oh Why’?

Written by Cassine Bering & Chloë Hayes