Case Analysis:

Sheeran & Ors v Chokri & Ors [2022] EWHC 827 (Ch) (06 April 2022)

Liam Wells, Barrister, Fraser Chambers & Nicholas Reed-Langen, Visiting Scholar, The Hertie School

1. Introduction

 

The music industry is a fickle business.  Talent only gets you so far, before you must ride your luck, hoping you catch a wave and surf it to superstardom.  Few have done this better than Ed Sheeran, who has ridden his wave all the way from busking on the streets of Galway City to global fame and untold riches.   But once superstars find themselves on top of the pile, new problems emerge, whether the pressures of fame, the demands of agents and publicists, or the arrival of hangers-on.

It is this latter group that Sheeran has suffered from most recently, with the success of his hit ‘Shape of You’ leading to Sami Chokri, a would-be musician (performing under the name of Sami Switch’, suing him for copyright infringement.  Chokri claimed that the music in the ‘Shape of You’ had a hook – ‘Oh I/Oh I/Oh I’ – that was copied from his rather less well-known track.  Handing down his judgment in the High Court last week, Mr Justice Zacaroli ruled against Chokri, finding that any similarities in the two pieces were circumstantial rather than evidence of plagiarism.

Some, including Sheeran, suggest that this tactic can be traced back to the successful claim filed against Robin Thicke and Pharrell Williams.  There, Marvin Gaye’s estate sued Williams and Pharrell, successfully alleging that their notorious hit, ‘Blurred Lines’, was derivative of Gaye’s 1970’s hit, ‘Got to Give it Up’. There, while they were not found to have plagiarised the lyrics or the music, the jury was satisfied that they had stolen the ‘feel’ of Gaye’s song.  But by basing the decision on such a broad conception of what is plagiarism – after all, there are only so many words and so many musical notes – artists like Sheeran are concerned that they are now ‘easy targets’ for copyright claims.

For aspiring artists like Chokri, the prospect of a lawsuit carries little risk – providing you can get a lawyer to sign on to a reasonable fee agreement – but promises great reward.  Even though he didn’t win his lawsuit, going up against Sheeran meant that Chokri’s name was in the press for days before, during, and after the trial.  The music industry is one where name recognition carries major benefits, and in Chokri may well have left court almost as satisfied as if he had won the case.[1][2]    Justice Zacaroli was also sceptical of Chokri’s intentions, writing in his judgment that Sheeran may have been justified in thinking of the lawsuit as a ‘tactic designed to extract a settlement’ more than anything else.

It is arguable that the law and the procedure surrounding copyright encourages this kind of ‘have a go’ effort.  Rather than copyright claims only being successful if a litigant can prove that there was intentional copying, all the litigant needs to prove is that the accused had ‘access’ to the original track, and that there may have been ‘subconscious copying.’  And in the age of YouTube and Spotify, when anything can be heard, even for a fleeting few seconds, it’s almost impossible to say you haven’t heard something before.[3]

Given this, solicitors, particularly those for behemoths like Sheeran, are likely to advise their clients to throw in the towel and offer some royalties or credit to their accuser.  So long as the claim is plausible, the costs of a legal fight – whether in reputation or in money – are likely to dwarf whatever the royalties amount to.  (Sheeran’s Shape of You may have been the exception to this, with the song arguably the most popular track in this decade).  And equally, solicitors for plaintiffs are likely to encourage their clients to take a punt, figuring they have little to lose.

Much of the problem is rooted in the fact that copyright law has not kept pace with technology. In past decades, listening to a song unknowingly would be reasonably difficult. You’d have to either stumble across it on the radio – something that is easy to track – intentionally play it on a CD or tape or hear it by chance in a shop or bar.  But today, the cornucopia of music available means that any song can be accessed, anywhere – so long as you have internet signal.

Consequently, in these cases, much will come down to the credibility of the main witness – usually a very famous pop star. The same issue arises in defamation claims, where the problem is compounded by the need for a jury (in the UK, at least). In front of the judge (copyright) or jury (defamation) it will seem like David v Goliath, and most of us instinctively want David to prevail, whatever the cause.[4]

Yet the real David and Goliath problem in UK, US, and European legal systems is not  of a single artist against another, or one big ego against a publisher, but rather millions of Davids considering going up against one Goliath – which is a large multinational corporation, like ENO.

Instead of being able to unify, acting together in common cause, such would-be litigants are stifled by the fact that many advanced legal systems do not allow for class action suits and costs sharing.  This depriving millions of such ‘[Davids’ of access to justice.  Instead,in defamation and copyright claims the (very much finite) resources of the UK courts are too often wasted on tactical behaviour or big-ego day in court rants from the rich and famous, possibly in both cases with an ulterior motive in mind. This. Therefore we agree with what Sheeran had to say to the BBC after his victory, but perhaps for broader reasons.[5]

2. Facts

In March 2015, the first Defendant, Sami Chokri released the song “Oh Why.” Ed Sheeran and two co-writers released “Shape of You” in January 2017.  Sheeran’s song went on to has since had more than 5.6 billion YouTube views. The reader is likely to have heard Shape of You and will likely know the part which goes “Oh I, oh I, oh I…”.

Zacaroli J, in his judgment, neutrally refers to this as the ‘OI Phrase’.[6]  Chokriclaimed that the OI Phrase was copied, intentionally or not, from Oh Why. He notified the Performing Rights Society, which governs royalty payments, that they should also be credited as songwriters on the of Shape of You. They suspended all payments to Sheeran and his co-Claimants, . Inevitably, Sheeran and his writing partners sought declarations from the High Court that they had not infringed copyright in Oh Why. While Chokri counterclaimed that their copyright in Oh Why had been infringed.

The issue in the case was ultimately one of copying. Had Ed Sheeran had access to Oh Why and ‘as a result’ (para 8) reproduced a substantial part of the song’s ‘hook’ when he wrote Shape of You? The Defendants alleged that he did this deliberately and consciously, or, in the alternative, that he did it subconsciously. In either case, Mr Chokri would need to demonstrate that Mr Sheeran had ‘access’ – heard, or listened to – to Oh Why before writing Shape of You.[7]

3. Law

Under the Copyright, Designs and Patents Act 1988 (CDPA), copyright subsists in original musical works under s.1(1), as clarified by s.3(1).   It will  be infringed – amongst other ways – if, without the permission of the owner, another person reproduces“the work in any material form’ (s.17(2) CDPA), providing that the copying is at least of a “substantial part” of the original work s.16(3)(a) CDPA.  As Zacaroli J wrote, the Judgment, ‘This is a qualitative, not a quantitative question. The test is whether the part in question contains elements which are the expression of the intellectual creation of the author of the work’[8]

Thus the claim of the Defendants that the OI Phrase was the ‘hook’ of Oh Why was crucial.  Was it a major part of the song – and its consequent success.  As per HHJ Birss QC in Mitchell v BBC[9] ‘The essential consideration is to ask whether a defendant has taken that which conferred originality on the claimant’s copyright work (or a substantial part of it).’ In terms of a musical context, the High Court has previously recognised that it is the sounds which are more important than the notes (para 23 Judgment)[10] and this will largely depend upon how the judge – hardly an expert in aural perception – hears the music: see Francis Day & Hunter v Bron [1963].[11] 

Importantly, it is the party alleging infringement (copying) which must discharge the burden of proof (balance of probabilities) that copying took place. [12] But, if there is proof of sufficient similarity and proof of access by the alleged copyright infringer, the burden shifts.  Crucially,  On this line of thinking, it seems that it is proof of access, not merely proof of possibility of access that is required to reverse the burden of proof.

However, Zacaroli J was sceptical of this approach. Inparagraph 25 of thehe refers with approval to Lord Millet’s judgment in in Designers Guild v Russell Williams[13] and to Baigent v Random House:[14] (emphasis added) ‘….although I do not think anything turns on it in this case. Tens of thousands of new songs are uploaded to internet sites daily. It clearly cannot be enough to shift the burden of proof that a song was uploaded to the internet thereby giving the alleged infringer means of accessing it. In every case, it must be a question of fact and degree whether the extent of the alleged infringer’s access to the original work, combined with the extent of the similarities, raises a sufficient possibility of copying to shift the evidential burden. Where, for example, the original work was highly individual or intricate, and the alleged infringing work was very close to it, then only limited evidence of access may be sufficient in order to shift the burden. The same would not be true, on the other hand, where the original work was simple and involved relatively common elements.’[15]

He continued, at para 26: “Irrespective of where the burden lies, infringement requires there to have been actual copying, which necessarily entails that the alleged infringer not only had access to the original work, but actually saw or heard it”.[16]   Yet while Zacaroli J may have come to this conclusion, the law still seems to place more weight on the question of access rather than copying – at least at the early stages.

Subconscious Copying in the Spotify and YouTube Era

As such, if one were minded doing so, then under the CDPA, simply alleging copyright infringement is surprisingly easy to do in the age of Spotify and YouTube. That is because of the doctrine of ‘subconscious copying’[17] as in Francis Day & Hunter v Bron.[18] ‘Subconscious copying’ is one’s ultimate ‘or in the alternative’… he copied it without even realising he had or intending to do so! But “it [is] nevertheless necessary to establish “proof of familiarity” with the allegedly copied work, as a prerequisite to establishing infringement: and that there was a causal link between the alleged infringing work and the original work.[19] Diplock LJ also spoke of the clear need for a causal connection between the two works.”[20]

Given the ubiquity of almost all music after the advent of streaming, it means that the court is broadly left to draw a set of tricky inferences from indirect evidence. Whether there has been subconscious copying is a question of fact to be determined on the basis of all the evidence.[21] ‘There will rarely, if ever, be direct evidence of subconscious copying, so it is necessary – as with any issue where direct evidence is lacking – to reach a conclusion based on inferences from other evidence.’ The Court of Appeal approved the direction of trial judge Wilberforce J in Francis Day (emphasis added)[22]

‘The final question to be resolved is whether the plaintiffs’ work has been copied or reproduced, and it seems to me that the answer can only be reached by a judgment of fact upon a number of composite elements: The degree of familiarity (if proved at all, or properly inferred) with the plaintiffs’ work, the character of the work, particularly its qualities of impressing the mind and memory, the objective similarity of the defendants’ work, the inherent probability that such similarity as is found could be due to coincidence, the existence of other influences upon the defendant composer, and not least the quality of the defendant composer’s own evidence on the presence or otherwise in his mind of the plaintiffs’ work.’

In other words, where subconscious copying is the fallback position, a non-specialised judge, her subjective perception of two pieces of music, the access of the alleged infringer to the earlier piece, and the performance of the alleged infringer[23] on the witness stand under cross examination, will all be crucial. All of this also means that there is a   a large amount of litigation risk for the accused violator. If we were the risk averse solicitor, just based on such a test, the most practical advice would be a credit and a cut of the royalties rather than the drama, disaster and expense which may follow litigation. Especially given that, if you go to trial, Counsel for the other side will do all they can to publicly humiliate someone who needs – and wants – validation from the public.[24]

 

4. The Rich, the Famous, the Wannabees, and Risk Preferences

 

Yet often the rich and famous, and especially public performers, are risk preferring relative to most others in society.[25] Perhaps, even, that is why they have become rich and famous. Ask Oscar Wilde, and Elton John, and Johnny Depp. For some, the media publicity surrounding a High Court case may be seen by them to raise the profile of the artist and simply increases their streaming count – after all, all publicity is good publicity for some. A libelled actor may lucratively rebrand himself for villain roles . Pop stars may find themselves bemoaning their misfortune with witty anecdotes on Graham Norton’s couch, while mentioning the album they’ve just released. Alongside this, simply being rich means they can often afford to fight for the sake of the fight when they encounter a party simply ‘having a go’ on the subconscious copying basis. And when the party alleging infringement is backed into that corner – having failed to quietly get their credit and cut of the royalties… well then, they look like the worst opportunists of all unless they put up a serious case and throw everything at the other side’s star witness. Lights, camera, and a room full of massive egos, some of whom have every incentive to cultivate reputations – good or bad.

5. Exemplified Here

Shami Chokri certainly threw everything at Sheeran, but perhaps most importantly, we all knowhis name now. And maybe that was the point all along. From para 29 to para 48 is a detailed analysis of the musical elements in Shape of You. Of course, there are similarities. Of course, there are also differences. But you would be hard-pressed to prove that this is intentional copying, as Chokri found. Between paragraph 49 and 77 the origins of the OI Phrase in Shape of You is given the Court’s valuable time and attention.[26] Again, some of the evidence pointed towards copying and some pointed away. Assisted by the credibility of Ed Sheeran and the corroborating evidence of his colleagues, no intentional copying was found here either.

So then we descend into the quagmire of subconscious copying. To establish this, under Francis Day, paras 78-146 deal with access (‘proof of familiarity’).[27] All three Claimants said that to the best of their knowledge they had never heard Oh Why, or of Chokri.[28] Counsel for Chokri – Mr Sutcliffe –  put it to Ed Sheeran, ‘obviously, there is no way you can remember every song that you have ever listened to.’ In 2022 where music blares from every shop and window and television and radio, for free, to wireless headphones, according to playlist choices designed by algorithms which seem to think the current writers love everything from the band Texas to German comedy A-Capella groups, that is a very difficult question to truthfully answer and not look as though you are damaging your own case in denial of access to the earlier piece.

Mr Sutcliffe – on behalf of his client – didn’t stop there. He went on to paint a picture of Mr Sheeran as a “magpie” (para 80 Judgment) ‘who habitually and deliberately copies and conceals the work of other songwriters.’ Yet Oh Why was played only twice on the radio, late at night (para 83 Judgment) in on emonth of 2016. No evidence was produced showing that Ed Sheeran or anyone associated with him heard it that way, nor that the track was ever sent to Ed Sheeran. Mr Chokri and his team say they wanted to get the song to Mr Sheeran’s attention, yet didn’t want to appear ‘needy’ (para 83). The Defendants went on to try to show that the track may have reached Mr Sheeran by any number of different (circumlocutive) routes through many different individuals. After arguing the access point, the Defendants even proceeded to allege a propensity on the part of Mr Sheeran to copy from others, ‘first [relying] on various instances where Mr Sheeran deliberately referenced the music of others in his writing, giving credit and seeking appropriate clearance’ at para 150 Mr Justice Zacaroli had, in our view, the perfect response:

‘I reject the defendants’ attempt to rely upon those occasions where Mr Sheeran referenced and credited other writers. There is nothing of probative value in them. There is no relevant “similarity” between the actions of someone who pays homage to the work of others, seeking their permission to use a part of their work, and someone who takes the work of others without crediting them. I do not accept the defendants’ submission that a person who copies music – even if this is done with permission – is “self-evidently more likely to copy without permission than a person who does not copy music at all.” On the contrary, the fact that someone is in the habit of openly recognising and crediting the work of others makes it less likely that they would set out to steal the creative work of others.’

On access the Judge concluded  (para 146): ‘Mr Sutcliffe suggested that the evidence overall presented a picture of a successful and well-publicised campaign involving renewing Mr Chokri’s profile in the “UK scene”, bringing Mr Chokri to the attention of Mr Sheeran’s associates and genuine exposure to the music industry more generally. I do not accept this. Mr Chokri is undoubtedly a serious and talented songwriter and while his management were unsurprisingly trying to create some hype around the release of the Solace EP, it had limited success. In my judgment, the possibility that these attempts might have led to it coming to Mr Sheeran’s attention – either because someone he was associated with played it to him or because he found it himself – is at best speculative.’ And that’s it, to speculate as to access and to allege subconscious copying is enough to bring the case to the High Court with the commensurate expense in time and money. The declaration sought by the Mr Sheeran and the other Claimants was granted (para 220) and the counterclaim by the Defendants for copyright infringement was dismissed (para 221).

6. Postscript: The ‘Attention Economy’

Welcome, readers, to the attention economy. At para 98 Mr Justice Zacaroli noted, ‘Mr Chokri agreed that the promotion by his managers of Oh Why and the Solace EP was “amateurish”. When Mr Mill put the same point to Mr Anstey, he fairly accepted that “we weren’t very experienced at this early stage of our careers.’ Well, if Oh Why didn’t have our attention before, it certainly does nowWorst case scenario is that the case itself gets the attention of music fans and kick starts a very successful career, even if it lost on liability. Meanwhile, the other side -here: Mr Sheeran – gets sympathy, headlines, coverage, and streams/downloads too.  ‘Amateurish’ or a stroke of genius in promotion? In defamation cases too, livelihoods are built on personas and above all upon attention. Change that persona, publicly, in court then if you are – for example, an actor – you can go from Gellert Grindelwald to Willy Wonka once again.[29] No matter what happened in a previous case. Above all what you ned is attention.

The world is full of artistic media just waiting to be discovered, loved, shared, and followed by fans. The thing linking the latter to the former is attention. Attention is the commodity.[30] Attention is the currency.[31] Whether artists should be benefitting – even if only collaterally – from the attention which they get in High Court legal battles, raises – at the same time – many questions about fairness, and access to justice. Rarely do David and Goliath face each other on the strand. Really the David v Goliath situation involves many millions of consumer David’s against one multinational Goliath, and the lack of cost-sharing and class-action lawsuit procedures offered by mature legal systems fails to place a monetary value upon small injuries to many millions over and above the value placed by some big egos on attention itself.[32]

[1] See, generally, on the move from the ‘material’ to the ‘attention’ economy: https://en.wikipedia.org/wiki/Attention_economy. See also: Mintzer, A. “Paying Attention: the Attention Economy.” Berkeley Economic Review 31 (2020).

[2] For a more academic framing of the theory see also Simon, Herbert A (1971). Designing Organizations for an Information-rich World. Baltimore, MD: Johns Hopkins University Press. pp. 37–52 and also: Goldhaber, Michael H (1997). “The attention economy and the Net”. First Monday. 2 (4). doi:10.5210/fm.v2i4.519. See also Davenport, Thomas; Beck, John (2001). The Attention Economy: Understanding the New Currency of Business. Cambridge: MA: Harvard Business School Press. ISBN 9781578518715.

[3] See, for a much fuller discussion of these technological developments, and their legal implications: Bargfrede Allen  Music Law in the Digital Age: Copyright Essentials for Today’s Music Business 01-May-2017.

[4] Most need not be reminded of the recent Judgment in [2020] EWHC 505 (QB).

[5] The authors intend to develop these points in a paper which goes beyond the scope of this case analysis.

[6] The OI Phrase, incidentally, refers to the eight-bar piece rather than the lyrics themselves.

[7] It was not claimed here by the Defendants that the lyrics had been copied (Oh I… is not the same as Oh Why) but rather that there was copying of an “original musical work” “a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music.”

[8] Newspaper Licensing Agency Ltd v Meltwater Holding BV [2011] EWCA Civ 890, at [24]-[28], applying Infopaq International A/S v Danske Dagblades Forening [2009] ECDR 16.

[9]  [2011] EWPCC 42 at [28]-[29].

[10] See Copinger and Skone James on Copyright (18th Ed at [3-125]

[11] [1963] 1 Ch 587, per Upjohn LJ at p.618.

[12] https://uk.practicallaw.thomsonreuters.com/w-011-3729?transitionType=Default&contextData=(sc.Default)

[13] [2000] 1 WLR 2416

[14] [2007] EWCA Civ 247 at [4]

[15] see, for example, Designers Guild (above), per Lord Millett at p.2425E; Baigent v Random House [2007] EWCA Civ 247 at [4]

[16] An historical peculiarity of English defamation law is that it is for the party who made the defamatory statement to prove its truth. The Claimant in a defamation claim may stay silent and still win.

[17] (see para 27 Judgment)

[18] [1963] 1 Ch 587

[19] See Wilmer LJ at p.614 (with whom Upjohn LJ agreed)

[20] (at p.624)

[21] Mitchell v BBC (above) at [39] and see para 28 Judgment.

[22] Francis Day (at pp.614-615)

[23] Possibly of the volatile pop-star variety.

[24] https://www.bbc.co.uk/news/entertainment-arts-61008849#:~:text=Sheeran%20said%3A%20%22I%20feel%20like,damaging%20to%20the%20songwriting%20industry…. “Copyright lawyer Kate Swaine says: “If I was advising somebody who’s been accused of copyright infringement, the first thing I would ask them is, ‘Is there a possibility that you could have, unconsciously or consciously, been influenced, inspired or taken an element of this?’ “If somebody turns around and says, ‘I do know that track really well. I have heard it. It’s not out of the question,’ they may feel that, rather than getting into the cost and disruption of a court action, it is easier to make a concession and therefore give some credit on the royalties.

[25] See above and below the references to the ‘attention’ economy.

[26] Whilst elsewhere delays abound where egos and budgets are smaller and ulterior motives are non-existent. See House of Commons Committee of Public Accounts Reducing the backlog in criminal courts Forty-Third Report of Session 2021–22. 28 Feb 2022.

[27] See Wilmer LJ at p.614 (with whom Upjohn LJ agreed)

[28] (Again, though,  now they have, and perhaps that’s the point)

[29] See (after losing in London). Mr Depp’s testimony began on 19 April 2022.

[30] See, e.g. Wu, Tim (April 14, 2017). “The Crisis of Attention Theft—Ads That Steal Your Time for Nothing in Return”. Wired. Retrieved 9 August 2021 and also McFedries, Paul (22 May 2014). “Stop, Attention Thief!”. IEEE Spectrum. Institute of Electrical and Electronics Engineers. Retrieved 9 August 2021.

[31] See the academic literature cited above. The Coasean solution would involve creating some sort of property right in attention itself. See Coase, R.H (1960). “The Problem of Social Cost”. Classic Papers in Natural Resource Economics (Gopalakrishnan C. (eds) Classic Papers in Natural Resource Economics ed.). London: Palgrave Macmillan. pp. 87–137. doi:10.1057/9780230523210_6. ISBN 978-0-230-52321-0. Specifically on property rights: Coase, R. H (1959). “The federal communications commission”. The Journal of Law and Economics. 2: 1–40. doi:10.1086/466549. S2CID 222324889. However, to shield the public (and our attention) from these copyright and defamation disputes – without us consensually exchanging ‘out’ attention for the details – would be complex or would require less transparency in legal proceedings, an end to public hearings, or restrictions on media reporting. Much of these would run contrary to accepted principles of natural justice and would require reform to English law.

[32] Please note that on 4 Dec 2020 the OJ of the EU published Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers. However, that the approach of this procedural framework is not market-oriented to the same extent as rule in US common law. And, as such it is unlikely to have the same effects in tackling the rational apathy problem as the equivalent US rules. A forthcoming paper by the authors seeks to explore this disjunct more fully: the gift given by English law to the rich and famous whilst failing to effectively tackle dispersed harms by the powerful against society at large.