The Shape of UK law on copyright infringement

Singer-songwriter Ed Sheeran has been accused of copyright infringement, relating to his 2017 song ‘Shape of You’.

In 2018, Sami Chokri and Ross O’Donoghue first alleged that the ‘Oh I, oh I, oh I, oh I’ hook in Sheeran’s hit song, is very similar to part of their 2015 song, ‘Oh Why’. Sheeran and co-writers, Johnny McDaid and Steven McCutcheon, all denied the claims and launched legal proceedings in May 2018 seeking a declaration that they had not infringed copyright. This was met with a defence and counterclaim by Chokri and O’Donoghue alleging copyright infringement.

The case has hit the headlines over recent weeks, with extensive reporting of what is being said and sung inside the court room.

What is Copyright?

UK copyright law is governed by the Copyright Designs and Patents Act 1988. Copyright is an intellectual property right that protects the expression of original, creative works, including:

• literary, dramatic, musical or artistic works;
• sound recordings, films or broadcasts; and
• the typographical arrangements of published editions.

Copyright gives the authors of such works the right to control the use and commercial exploitation of the work. Unlike trade marks, patents and designs, copyright protection arises automatically on the creation of a relevant work and does not need to be registered.

The duration of copyright depends on the nature of the creative work. Literary, dramatic, musical or artistic works are protected for the lifetime of the author plus 70 years after their death. Sound recordings are protected for 50 years from when it is made.

Copyright, in the context of music, can involve a number of elements. Song lyrics constitute a literary work; the sounds of a song (exclusive of any words) is a musical work; and a sound recording covers the recording of the performance of a work.

What is Copyright Infringement?

Copyright is infringed by anyone who carries out the copyright owner’s exclusive rights without permission. These primary acts of copyright infringement include: copying a copyright work; issuing copies of the copyright work to the public; and communicating the work to the public.

There are some permitted acts which can be relied upon as a defence to copyright infringement, including where use of the work is considered “fair dealing” but none of the exemptions would apply to Sheeran’s case.

In this case, Chokri and O’Donoghue are relying on reproduction of their musical work as the basis of their claim. In this regard, it is not necessary to copy the exact musical notes originally used. Rather, for a finding of copyright infringement, it is the sound which is important.

The Test

To prove infringement, the test is whether all or a substantial part of the copyrighted work has been copied. Primary infringement of copyright is a so-called strict liability offence, meaning it does not matter whether or not there was any knowledge or intention to infringe. The fact Sheeran maintains that he had not heard “Oh Why” prior to composing ‘Shape of You’ would therefore have little baring on a finding of infringement – although that is something that would be considered as part of any damages payment.

If a copyright work is copied in its entirety, it will be a clear case of infringement. If only a part has been copied, then the question is whether a substantial part has been copied.

This is a qualitative rather than a quantitative assessment. To establish whether there has been copying of a substantial part, the part of the copyright work which was copied and the quality of the originality which earned the work copyright protection has to be considered.

This assessment by the court will likely determine the outcome of Sheeran’s case. The case will likely turn on whether “Oh Why” can be considered original enough to be afforded copyright protection and on whether Sheeran’s use of “Oh I” is considered a reproduction of this, such that its use amounts to copyright infringement.

The available remedies for those who have had their copyright infringed include: injunctions (known as interdicts in Scotland) (interim and final); damages or an account of profits; declaratory relief (i.e. a ruling that there has or has not been infringement); and so called “publication orders” which allow either party to ask the Court to publish a summary of the judgement either online or in national or trade press. If successful, Chokri and O’Donoghue could find themselves on the receiving end of a substantial payment given “Shape of You” was the best selling song in the world in 2017.

Industry Wide

Ed Sheeran’s current copyright infringement case is not out of the ordinary.

The singer himself has faced previous copyright infringement accusations. In 2017, he settled a lawsuit brought against him in the US for his song ‘Photograph’. He is also currently facing another US lawsuit for his song ‘Thinking Out Loud’.

Dua Lipa is also facing two copyright lawsuits over her hit song ‘Levitating’, with complaints filed in California and New York.

In what will likely be considered a welcome decision for Sheeran, Katy Perry was recently successful in the defence of a copyright infringement lawsuit brought against her in the US. The singer was accused of plagiarising an eight-note ostinato in her song ‘Dark Horse’ but on appeal it was held that the other side were trying to claim an “improper monopoly” over standard musical sequences and scales.

While most of these cases have arisen in the US, it demonstrates that copyright infringement litigation is increasingly prevalent in the music industry. The Court of Session (the Scottish IP Court) is well versed in dealing with intellectual property disputes and it might not be too long before a case such as this is put before them.

Article co-authored by Clare O'Toole, Trainee Solicitor at CMS