World-renowned music star Ed Sheeran was sued for copyright infringement over his song Shape of You. He defended his music and won the case. What did we learn from this case?
Facts first. The British grime music artist Sam Chokri, aka Sami Switch, alleged that Shape of You, released in 2017, had “strikingly similar” features to his 2015 song Oh Why released two years earlier.
Chokri claimed that the chord progression and musical hook of Sheeran’s song were similar to his. In 2018, Chokri requested that the Performing Rights Society to add him as a co-author to Shape of You, leading to the song’s royalties being temporarily frozen. Together with the song’s co-writers, Sheeran proceeded to sue Chokri over the temporary freeze and, consequently, a counterclaim was filed against the Shape of You songwriters for copyright infringement.
Copyright as a rudimentary legal instrument aims at safeguarding and offering protection to the work that is eligible for copyright protection, as long as the work meets the criteria of qualification, originality and fixation. In Malta, the Copyright Act (chapter 415 of the Laws of Malta) acknowledges that ‘musical works’ are a form of copyrightable work.
The Copyright Act also specifies that music is eligible for copyright protection if the author(s) are either Maltese citizens, residents or domiciled in Malta. They may also reside in another state where copyright protection is afforded by the same international treaty to which Malta is a party.
For musical work to meet the originality requirement, it must be shown that the work produced is solely that of the author(s). To prove originality, the work must also be the result of the author’s distinctive intellectual input. While originally and distinctiveness is important, the work must be fixated, that is, either written, recorded or otherwise reduced to material form.
Copyright protection has a finite duration which may vary. For literary, musical or artistic works, this remains in force for up to 70 years after the author’s death.
At EU level, various directives and regulations ensure that the same protection is accorded to those residing in members states.
The EU has adopted several legal instruments in the field of copyright, namely 11 directives and two regulations, which harmonise the essential rights of authors, performers, producers and broadcasters. Yet, unlike in other fields of intellectual property law, there is no ‘single legislation for copyright’, and each of the member states has its own copyright law and policy.
In Malta, a person found guilty of copyright infringement may potentially incur both a civil and criminal punishment
Although the lawsuit between Sheeran and Chokri took place in the UK, that is outside the EU, both parties were protected by and subject to other intellectual property laws. Primarily, these are the Copyright, Designs and Patents Act 1988, which is the principal legislation covering intellectual property rights in the UK and the work to which it applies, as well as international instruments, namely the Berne Convention, which Malta is also a party to.
The key element of this particular lawsuit was the similarity between key parts of the two songs. Chokri’s argument was that Sheeran had not only listened to his song but copied elements of the hook. Had this been the case, copyright protection of Sheeran’s song would have been lifted as it would have been in violation of the originality criterion.
Sheeran’s rebuttal to these claims focused on the fact that likelihood of musical similarities is probable given that major streaming platforms such as Spotify release around 22 million songs annually. This, in Sheeran’s view, does not make him guilty of infringement, as it would have required evidence that he had listened to Chokri’s music and then failed to acknowledge Chokri’s influence in the song.
Sheeran stated that he always respected other artists and passed on royalties due in the event of musical influences which he would have garnered. To strengthen his argument, he uncannily made reference to his same song Shape of You, which pays royalties to the musical group TLC for the musical influence of their song No Scrubs.
The High Court ruled in favour of Sheeran. The presiding judge, Justice Antony Zacaroli, commented on the lack of compelling evidence from Chokri who was obliged to prove that Sheeran had listened and subsequently copied Oh Why. Without this evidence, the similarities were merely a matter of coincidence and a matter of fair use.
In Malta, a person found guilty of copyright infringement may potentially incur both a civil and criminal punishment. Had Sheeran been found guilty of copyright infringement in Malta, he and the two other co-authors of the song would have been liable to either a fine ranging between €3,000 to €24,000 or imprisonment for up to three years.
Christina Borg Debono is a senior associate, WH Partners, and Warren Farrugia is a trainee lawyer, WH Partners.