We have another, and possibly the final, chapter in the Ed Sheeran copyright saga.

The background was covered in my last blog on this case. With this week’s High Court decision coming out, I thought it would be useful to write an update now that the case has been decided.

On Wednesday this week, it was declared that Ed Sheeran had not infringed the copyright in the Sami Switch song “Oh Why”. The judge, in this case, stated that Ed Sheeran has “neither deliberately nor subconsciously copied” the Sami Chokri song. Whilst it was accepted that there were similarities, this was not enough for the court to find that copyright infringement had occurred. In fact, in coming to its conclusion, the court actually found that Ed Sheeran had never heard the Sami Chokri song before writing “Shape of You”.

As a songwriter and an intellectual property lawyer, I am all too familiar with the fact that music of the same genre often sounds similar to what has gone before, especially given that there are only so many chords that can be played in one song (and generally the same chords are used in pop songs).  In his social media post following this case, Ed Sheeran stated “there are only so many notes” available to us songwriters. With a small selection of chords and 12 notes to choose from when writing a melody and the accompanying music in a song, it is increasingly likely that your “original” song might sound similar to another song. In Ed Sheeran’s case, the alleged copyright infringement related to a section of each song which was based on a pentatonic scale (a scale based on five notes).

This is commonly used in many pop songs, as Ed Sheeran showed live in court, and the similarities in music are exacerbated by the fact that there are around 22 million songs released every year. This means that it is increasingly difficult to prove that the copyright in your music is truly original in terms of the Copyright, Designs and Patents Act 1988, especially if you write pop songs with melodies based on a pentatonic scale. If so, it is likely that the notes used in your song will literally have been used millions of times before.

This high-profile cases serves as a reminder that, before making claims of copyright infringement, you should ensure that there are adequate grounds for raising that claim. If you are not sufficiently certain that you are on firm ground then you should proceed with caution and certainly seek legal advice from an IP specialist. Before making a claim of this nature, you should always be aware that the alleged infringer may seek a court order declaring that they are not infringing your copyright and will then seek costs from you if they are successful.  In this case as Ed Sheeran’s royalties had been suspended pending determination of the claim, it is not surprising that he took the initiative and sought such a declaratory order of non-infringement.

If you would like more information in relation to copyright or any other IP queries, please let us know and our IP team will be happy to discuss further with you.

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