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Copyright or copywrong: the Shape of You case and its implications

Marlon Austin discusses the recent Shape of You decision and copyright litigation in music.

Ed Sheeran is one of my least favourite singers, and Shape of You is almost certainly my least favourite song. A running joke amongst my friends has been that if I had written something similar, I would be actively distancing myself from Ed Sheeran and not endorsing the two songs’ similarities. However, the recent copyright case Sheeran v. Chokri has to be seen outside personal feelings and the individual songs and musicians involved; it is not just an enormous win for Sheeran and his wallet but a victory for the music industry as a whole. He noted in a statement released after the judgment that there are “very few chords used in pop music” and that “coincidences are bound to happen” when 22 million songs are released on Spotify yearly. While the recent case itself foundered on a lack of proof that Sheeran had actually heard the song he was accused of copying, it hopefully reflects a wider pushback on the hyper-litigious culture that has plagued songwriting in recent years.

In order to fully understand the recent proliferation of litigation it is important to look at the history of such lawsuits, before examining the Shape of You case itself. Although music copyright has been enforced for a long time, one can point to the 2013 Blurred Lines lawsuit as a flashpoint which allowed an unprecedented copyright over the “musical style” of a song. Subsequently, similar lawsuits have plagued artists such as Bruno Mars, Katy Perry, and Drake. Additionally, Olivia Rodrigo has given writing credits to Taylor Swift and Paramore over perceived similarities between deja vu and Cruel Summer; and good 4 u and Misery Business respectively.

Blurred Lines and its worrying precedent

Rodrigo’s generosity with writing credits can be seen as a direct consequence of the Blurred Lines decision, in which Marvin Gaye’s estate sued Robin Thicke and Pharrell Williams for supposedly infringing the copyright of Gaye’s song Got To Give It Up. Dissenting federal Court of Appeal judge Jacqueline Nguyen categorically stated that “Blurred Lines and Got to Give It Up are not objectively similar. They differ in melody, harmony and rhythm.” She further argued that it set “a dangerous precedent that strikes a devastating blow to future musicians and composers everywhere”. Despite this, her colleagues in the majority dismissed these concerns as “unfounded hyperbole,” and gave the claimants $5.3 million. But four years after this decision, this concern increasingly seems like a well-founded one.

If all pop-punk bands with a female singer and similar guitar sounds somehow owe writing credits to Paramore, the effective result is that Hayley Williams and co. have not only been given creative ownership not only over their own songs but over the entire genre. The Gaye estate argued based on the “feel” of a song, but sonic familiarity can be a key factor in a song’s popularity. To name but one example, the recent 80s revival amongst pop music could leave huge numbers of artists liable. Dua Lipa’s brilliant 2020 album was titled Future Nostalgia. The singer has already been sued twice over her hit single Levitating; we can only hope that the album does not result in Future Court Battles.

A Solution?

The ideal (and, in my opinion, only) solution to this is for artists to simply acknowledge their musical influences and move on, be it through interviews, liner notes, or even in a song. 2018’s Star Treatment features Alex Turner admitting that he “just wanted to be one of the Strokes,” and Julian Casablancas returned the favour in lieu of suing him. Elvis Costello acknowledged the similarity between the guitars on Olivia Rodrigo’s brutal and his track Pump It Up, and tweeted that “[i]t’s how rock and roll works… that’s what I did.” George Michael’s estate similarly gave Lorde its blessing over 2021’s Solar Power and its similarities to Freedom! ‘90, going as far as to state that “George would have been flattered.” 

The biggest song of 2019, Old Town Road, had at its core a clearly recognisable and initially uncleared sample of a banjo, taken from American industrial rock band Nine Inch Nails’ 34 Ghosts IV. Had their frontman Trent Reznor been more litigious, it is likely the song could not have existed in the form it did, or enjoyed its subsequent success. The TikToks, remixes and debates over whether or not it was truly a country song would never have happened, and music would have lost out.

Reznor is no stranger to having his own work remixed and altered; he claimed in a 2004 interview with Alternative Press that hearing Johnny Cash’s version of Hurt was so powerful it made him feel like “that song isn’t mine anymore.” From this background, he told his “panicked” managers, “look, I’m fine with it… don’t be a roadblock to this.” Even after being added as a writer, he wasn’t searching for fame or royalties, enjoying the fact that he was “listed on the credits of the all-time, Number One whatever-the-fuck-it-is wasn’t something” but claiming that “I don’t feel it’s for me to step in there and pat myself on the back for that.”

The issue with relying on artists deciding not to sue instead of weakening the rigidity of copyright law is that many smaller artists simply do not make enough money to justify ignoring potentially lucrative plagiarism lawsuits. Matt Cardle’s settlement with Ed Sheeran over Photograph (for $5.4 million and 35% of the ongoing royalties) represents the apex of an enormous revenue stream that less-successful artists cannot ignore. Paramore and Taylor Swift are unlikely to take legal action over similarities in their songs and seem to have been prospectively added to Rodrigo’s writing credits to avoid the possibility of any litigation. The lawsuits against Katy Perry, Taylor Swift and Ed Sheeran, however, could be cynically portrayed as financially motivated. Indeed, Sheeran seems to take this view, claiming that there is now a culture “where a claim is made with the idea that a settlement will be cheaper than taking it to court, even if there’s no basis for the claim.” 

Sheeran v Chokri: the case itself

The basis of the recent saga over Shape of You was that Ed Sheeran had copied the ‘hook’ of the song from Sami Chokri’s 2015 song Oh Why. The argument had three components: firstly that the similarity between the two is too clear to be a result of anything other than copying; that Sheeran had access to the song via “a number of channels,” and finally, that Sheeran had “a propensity to collect ideas for songs [from other people] in advance of writing them.”

Sheeran was accused by Andrew Sutcliffe QC, Mr Chokri’s barrister, of being a “magpie” who “borrows ideas” and only “sometimes” acknowledge it. He claimed that Sheeran decided based “on who you are and whether he thinks he can get away with it,” supporting this claim with other songs from Sheeran’s discography (such as Photograph) which he alleged demonstrated a propensity for plagiarism. The speed at which Sheeran wrote songs was characterised as “indicative of copying,” and the cross-examination was harsh enough for Sheeran to publicly brand it as “deeply traumatising. His co-writer John McDaid similarly talked about the cost “to our mental health and creativity.”

Sheeran in fact wrote neither the main marimba riff of the song nor the phrase “the shape of you,” which were improvised by his co-writers Steven McCutcheon and John McDaid respectively. The judge noted that “he co-wrote virtually all of the songs [on Divide] with others,” forming a starkly ironic contrast with lyrics from his 2011 hit You Need Me, I Don’t Need You: “I sing, I write my own tune and I write my own verse hell / don’t need another wordsmith to make my tunes sell / call yourself a singer-writer, you’re just bluffing / name’s on the credits and you didn’t write nothing.” 

However, Sheeran’s lack of authenticity and his supposed “selling out,” are not the issue at stake, nor should they be. Radio-friendly pop songs of the kind Sheeran writes are necessarily collaborative efforts and exposing the behind-the-scenes nature of pop, while of great interest to some, comes at a creative cost. Sheeran now films his songwriting sessions as evidence for fighting litigation. One wonders if the time he has spent worrying about litigation could be spent writing better songs than Shape of You. 

The judge ultimately rejected all three of Mr Chokri’s arguments. He found no evidence that Sheeran had ever heard the song he was accused of copying and said that infringement “necessarily entails that the alleged infringer not only had access to the original work, but actually saw or heard it.” This is to be welcomed; proof of the possibility of access sets no higher a hurdle than uploading it to Spotify or Youtube. He concluded that the song had not been copied, intentionally or subconsciously, from Mr. Chokri. The allegation that Sheeran’s writing speed was “indicative of copying” was rejected, as was the view of him being a “magpie.”

The conclusion to the four year saga over alleged plagiarism within Shape Of You hopefully points towards a more creative future. We can only hope the decision results in a further backlash against the culture fostered by the Blurred Lines decision and a reduction in the number of frivolous lawsuits against musicians. They are bad for artists, bad for all genres of music, and fundamentally, bad for creativity. As Sheeran is still being sued in the US by the Gaye estate over Thinking Out Loud’s similarity to Let’s Get It On, we shall have to wait and see if it truly does. 

Image credit: Lifebyyahli / CC BY-SA 4.0 via Wikimedia Commons

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