A Critical Analysis On The Determination Of Copyright Infringement In Sound-Alike Songs With Reference To “Ed Sheeren Vs Sami Chokri

Introduction

Humans and music have been entwined from the beginning of time. Various kinds of expression are subject to an identical criterion for copyright infringement. However, because of its distinctive characteristics, musical expressiveness presents significant difficulties for courts adjudicating infringement issues. Contrary to literature or physical manifestations of art such as paintings and sculptures, music is capable of a vast variety of creative possibilities, yet it is unable to function properly beyond its conceptual structure. While autonomous creativity disproves plagiarism, judges frequently struggle to determine if accused songwriters violated prior protected works or just came up with a structure, harmony or lyrics that was akin to others. Lawsuits alleging copyright infringement premised on musically similar works is not a new concept in the music industry. “Under Pressure”, a 1981 duet, was a number-one single in the UK. Later in 1990,  Rapper Vanilla Ice delivered the single Ice Ice Baby later that year, which featured a sampling of the iconic baseline by John Deacon. An out-of-court settlement of the lawsuit against the rapper resulted in payment to David Bowie and Queen as well as songwriting credit. In 1984, John Fogerty was forced to defend himself after his former record company accused him of copying “The Old Man Down the Road” without permission. The record label claimed that after giving up the rights to his earlier compositions, he had used an identical chorus but changed lyrics, to steal his own hit song, “Run Through the Jungle.” The dispute was finally won by Fogerty. He carried his guitar to the witness box and performed snippets from each song to convince the court that even if the two tracks had separate compositions, his “swamp-rock” style could make them sound identical.[i] A court in the U.S. District Court for the Central District of California determined in March 2015 that the song Blurred Lines by Robin Thicke and Pharrell Williams violated Marvin Gaye’s “Got to Give It Up”, which was composed more than thirty years earlier. Due to the fact that the two tracks were “substantially similar,” the jury determined that Thicke and Williams’ song violated Gaye’s song.[ii]  Several sound-alike lawsuits in recent times has sparked worries among composers and musicians who are accused of stealing essential components of music they might have never heard. Sami Chokri made one such accusation of plagiarism when he claimed that Ed Sheeran, his co-writers, and producer plagiarized the 2015 song “Oh Why” for the song “Shape of you.”

Copyright Music

[Image Sources : Shutterstock]

Background

“Copying” must be done in order to violate copyright laws, albeit this can be assumed based on circumstantial evidence. As a result, a creator may technically autonomously reproduce a previously made work without violating the copyright of the original creator. In the absence of direct evidence of real copying by the accused, the claimant of lawsuit should then demonstrate real “copying” by establishing that the accused had knowledge to the earlier work and that the creations are “substantially similar”.  The claimed copying also should contain a protected component.  This suggests that essential components must be sufficient and their choice and layout should be creative enough to make up an original patentable product.

After being released in January 2017, “Shape of you” quickly rose to fame among musical fans across the globe and was named the best-selling digital single of that year. In contrast, the song “Oh Why,” was sung by Sami Switch and appeared on his album “Solace,” which was released in March 2015.  Sami Chokri, Ross O’Donoghue, and Artists and Company Limited were the targets of a lawsuit brought by Ed Sheeran, Steven McCutcheon, and John McDaid, Sony/Atv Music Publishing (UK) Limited, Rokstone Music Limited, and Polar Patrol Music Limited.  The claimants filed the lawsuit (no. IL-2018-000095) in 2018 in an effort to obtain a ruling that the infringement of the copyright of the track “Oh Why” had not occurred whilst composing the track “Shape of you.” The defendants responded with a counterclaim alleging that the plaintiffs had violated the copyright for “Oh Why.”

Issues and Observation of the Court

Similarities and Differences between the two songs

The United Kingdom’s Copyright, Designs and Patents Act (CDPA) 1988’s clearly differentiates between musical and lyrical compositions. In accordance with the lawsuit, the only thing Ed Sheeran was accused of was creating a musical composition that was “exclusive of any words or action intended to be sung, spoken, or performed with the music”.  Considering the level of the claimed similarity, that equated to the “Oh I Post-Chorus,” which was claimed to replicate a musical phrase performed to the lines “Oh why, oh why, oh why, oh,”. It was claimed, in line with the Smith v. Dryden[iii] ruling, that it is a more probable “coincidence” than “copying” when these notes are reproduced in the same order as the scale. When comparing the tracks, the judge observed that although there were some parallels such as in the vocalization and harmonies of the two songs, there were also a variety of major variances, such as in the composition, pace, and atmosphere.

Subconscious or Conscious Copying

The Defendants said that claimants had consciously or unconsciously copied the  “Oh Why” phrase. Further, they also claimed that Ed Sheeren could have come across the track due to him being a part of the UK music scene and through his various industry contacts. In the end, the Judge stated that there was no proof that the claimants have done so,  and  pointed out that several components shared by both songs were present in a wide variety of music present in the music industry. With regards to Subconscious Copying, the court pointed out that hat the attempts to market “Oh Why” on social networking sites had not been “materially successful” and that the track had only received 12,914 YouTube views in the period of two years. Finally, the  Judge came to the conclusion that it is “at best speculative” that the defendant’s efforts to promote and spread his music may well have brought it to claimant’s knowledge.

Conclusion

The development of digital content has made it simple to share music globally. Musicians and composers must take immediate measures if they believe their material has been stolen or exploited in another way without their consent, compensation, or even acknowledgment. Alternatively, they risk a rise in unauthorized usage of their art. The audience that purchases records may become confused by sound-alikes, particularly if the publication makes mention of the legitimate performers. In the present case, Chokri had to demonstrate that Sheeran had heard his music for the parallels to be more than coincidental. The judgement was rendered in Ed Sheeren’s favour since the defendant was unable to prove this sentiment. The case was keenly watched in the legal and music sectors, with some experts expressing worry that the copyright legislation is out of date. The judgement and its effects demonstrate how technology and the internet is influencing not just the judicial process but also the artistic process in general.

Author: Trisha Naik, A student of Symbiosis Law School, Hyderabad, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

References

  1. Livingston, Margit, and Joseph Urbinato. “Copyright infringement of music: determining whether what sounds alike is alike.”  J. Ent. & Tech. L.15 (2012): 227.
  2. Tschider, Charlotte. “Automating Music Similarity Analysis in’Sound-Alike’Copyright Infringement Cases.” (2014).
  3. Demers, Joanna. “Sound-Alikes, Law, and Style.” UMKC L. Rev.83 (2014): 303.
  4. Booth, Nicholas. “Backing Down: Blurred Lines in the Standards for Analysis of Substantial Similarity in Copyright Infringement for Musical Works.”  Intell. Prop. L.24 (2016): 99.
  5. https://www.musicbusinessworldwide.com/why-ed-sheerans-copyright-victory-matters-by-the-lawyers-than-represented-him/
  6. https://www.theguardian.com/music/2022/apr/06/ed-sheeran-wins-court-battle-over-shape-of-you-plagiarism-accusation
  7. https://www.bbc.com/news/entertainment-arts-61006984
  8. https://www.nationalworld.com/news/people/ed-sheeran-court-case-shape-of-you-copyright-claims-sami-chokri-oh-why-3601358

[i] Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)

[ii] Williams v. Bridgeport Music, Inc., 2014 U.S. Dist. LEXIS 182240 (C.D. Cal. 2014)

[iii] [2021] EWHC 2277 (IPEC)

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