Copyright is perhaps the most mystifying of the possible intellectual property rights an artist can employ to protect their creations. In a nutshell, copyright protection arises automatically in original works, including music and sound recordings, and generally belongs to the creator(s). However, unlike its companions, design right, trade marks and patent, there is no UK registration process and therefore no 'black and white' record as to what is protected and from when (common law protection for brand elements and unregistered design rights also arise automatically, but owners have the option to crystallise their protection formally). Against this background, proving that what you have created is original and has not infringed an earlier work is convoluted; as Ed Sheeran has found out in the recent case against Sami Chokri and Ross O’Donaghue -
Sheeran et al v Chokri et al [2022] EWHC 827 (Ch).
In this well-publicised case, Sheeran employed the ‘offence is the best defence’ strategy by bringing proceedings for a declaration of non-infringement of copyright in the 2015 song
Oh Why, written by Chokri and O’Donaghue. The duo had notified the Performing Rights Society Limited that they should be credited as songwriters of Sheeran’s hit
Shape of You, written on 12 October 2016, claiming that Sheeran and his co-writers had infringed their song
Oh Why by copying parts of it in
Shape of You.
During the trial, the judge had to apply various tests to determine whether there had been copyright infringement. He considered whether a substantial part of
Oh Why had been copied, and if so, had there been conscious copying. The argument centred around the "Oh Why" hook in Chokri’s song and Sheeran’s phrase "Oh I" in
Shape of You. For an excellent side-by-side analysis and musical dissection, see
David Bennett’s YouTube video from the five minute mark.
Bennett notes that although there is a similar melody combined with a similar lyric, it consists of a “typical climb up the minor pentatonic scale” with a “generic lyric”. The judge concluded the same, finding that the melody was basic, short and commonplace. It was by chance that those two snippets sounded similar, there were enough differences in their placement and in the rest of the two songs, as well as evidence of the creative process, for the judge to conclude that Sheeran had not copied the earlier work and the
Shape of You hit had been written organically by Sheeran and his co-songwriters. He also found that Sheeran had not had access to the obscure
Oh Why song and had no opportunity to have either deliberately or subconsciously copied it.
Whilst a great case to dissect, it doesn’t really assist those who need clarification the most – the artists. Very few will have Sheeran’s assets to seek a declaration of non-infringement and defend a claim of infringement – both of which will have been costly. How then can they avoid similar allegations?
The honest answer is that there is no easy method. The best advice is to keep records of the writing process. If an author can prove that their work originated first or that the process in no way referred to or included an earlier work, they will have better odds of defending themselves against such allegations.
Digital technology and automatic timestamps of created files helps to create a reliable paper trail. For an old-fashioned method, sealing your manuscript/design in an envelope, sending it to yourself by registered post (don’t open it) and keeping it safe is a tried and tested method of proving the date on which a work is created.
For further advice on how to protect your original works, please get in touch with our
intellectual property team and we can discuss with you the best strategy to protect your assets.