Chokri and others vs Sheeran and others
2022 • Decided • UK
Claimant Work: Oh Why
Defendant Work: Shape Of You
Another case was brought against Ed Sheeran in 2018, claiming that his song Shape Of You copied an earlier song by Sami Switch called Oh Why.
Sam Chokri, AKA Sami Switch, released his song Oh Why in March 2015.
Ed Sheeran's Shape Of You was the biggest selling single of 2017, released in January that year, and was the last track to be written for his album Divide ÷. Sheeran's defence team stated that the track was composed on 12th October 2016.
In May 2018 Chokri, his publisher Artists & Company Limited and his co-writer Ross O'Donoghue brought a claim against Sheeran, his co-writers Steve Mac and John McDaid, and their various publishers, that Shape Of You was copied from Oh Why. The Sun reported in July 2018 that Sheeran's lawyers issued a writ to halt the proceedings which had resulted in a freeze of his royalties, and were causing "reputational damage", to declare that Shape Of You does not infringe Oh Why.
Chokri's legal team then argued that Sheeran and his co-writers had previously settled infringement claims against four other songs, and therefore were in the habit of copying. This is known as similar fact evidence and seeks to use proven examples of past behaviour as evidence that similar behaviour in a current case is more likely, where not yet proven.
The similar fact evidence here drew on documented settlements with third parties in Sheeran's earlier songs The Rest Of Our Life, Photograph, Strip That Down and also an earlier settlement with the current song.
Sheeran's writ failed, and three of the four songs were allowed to remain as similar fact evidence, the exception being The Rest Of Our Life, which had been reported as settled but without any share of future royalties payable to the writers of When I Found You.
Sheeran brought an appeal against a decision in June 2019 not to allow them to strike out the allegations made of similar fact evidence. Permission to appeal was granted in October 2019 and in January 2020 Mr Justice Nugee dismissed the appeal.
The judge noted that Sheeran's song Strip That Down appears to have settled a claim out of court and now pays 25% of royalties to the writers and publishers of It Wasn't Me, Shape Of You already pays 15% of royalties to No Scrubs, and Photograph (which shares the same co-writers as Shape Of You) pays 35% of royalties to Amazing.
The case came to trial in the UK in March 2022.
Case for infringement
As reported in IP Kat, Chokri's claim used a musicologist's report which referenced the similarity of the lyrics @"oh why, oh why" (Chokri) to "Oh I, oh I" (Sheeran), the structure of the lyrics between the choruses - alternating the oh why/ oh I phrase with a different phrase - "why do I put myself through this" (Chokri) and "I'm in love with your body" (Sheeran).
"Harmonic Progression" is claimed as a similarity. This relates to the direction that the chords move, and in both cases it is upwards. In Oh Why the progression is i III iv (F# minor to A major to B minor). Shape Of You moves i iv VI VII (transposed F# minor, B minor, D major, E major).
Tone, texture, melodic fills and rhythmic clicking were also claimed as similar.
Access by Sheeran and co-writers to Oh Why is claimed by the fact that it had been released in 2015 onto popular digital platforms. It was claimed that Chokri had met Sheeran at a party in 2011.
Case against infringement
Sheeran's counter-claim also contains a musicologist's report which offers differences in the lyrics, different keys for each song, differences in the rhythmic clicks. It mentions that only the word "oh" is similar. "I" and "why" are different. "Oh" on its own is not substantial.
The claim from Sheeran also denies ever having heard the song "Oh Why".
(Chokri, O'Donoghue) © Artists And Company Ltd. Recorded by Sami Switch ℗ 2015, Sami Switch.
Shape Of You
(Sheeran, Mac, McDaid) © Sony/ATV Music Publishing (UK) Limited, Rokstone Music Limited, Spirit B-Unique JV SARL, Kobalt Music Copyright SARL. Transposed down a fifth for ease of comparison. Recording by Ed Sheeran ℗ 2017, Asylum Records.
During an 11-day trial in March 2022 Sheeran defended Shape of You, stating that he had "neither deliberately nor subconsciously" copied an element of the song Oh Why. The judge accepted that, although similarities existed between the two songs, there were also "significant differences" between them. Proof was not given of Sheeran ever having had access to the song Oh Why, with the judge saying that evidence was "speculative". Mr Justice Zacaroli ruled that Sheeran had "neither deliberately nor subconsciously" copied, and he was cleared of the claim.
The ruling in this case is significant in that it allows as evidence the fact that Sheeran and co-writers have settled other infringement claims in the recent past. But the very fact that this claim was not settled before suggests that they believe that no copying has taken place.
In many regards the similarities between Shape Of You and Oh Why are more apparent than Shape Of You and No Scrubs, because here there are melodic similarities that are not apparent with No Scrubs.
Shape Of You Wikipedia
Hayleigh Bosher's IP Kat August 2018 commentary here
IP Kat January 2020 commentary here
Hugo Cox asks if Sheeran has infringement "form"
Court papers from the 2019 appeal in the High Court here
The Guardian, 6 April 2022 reporting the verdict in favour of Sheeran