Ed’s hearin’: Ed Sheeran appears (and sings) in High Court to defend copyright claim

Ed Sheeran appeared in London’s High Court on Monday to defend a claim from songwriters Sami Chokri (whose stage name is Sami Switch) and Ross O’Donoghue. Ed Sheeran and his co-writers to “Shape of You”, Steven McCutcheon and John McDaid, brought an action against Switch and O’Donoghue asking for a declaration that Sheeran’s “Shape of You” did not infringe Switch’s “Oh Why”. Switch and O'Donoghue counterclaimed for infringement.

Sami Switch's "Oh Why" can be heard here: https://youtu.be/a3VDY6ttikM?t=36

In evidence, Sheeran submitted that the contested part of Shape of You was “very short” and that that part in each song was “entirely commonplace”. Indeed, Sheeran sang parts of Nina Simone's Feeling Good and Blackstreet's No Diggity in court to illustrate how commonplace the melody is.

From a UK copyright perspective, it is not a relevant factor that the contested part is only a small part of Shape of You, as Sheeran alleges. The relevant test is that the contested part amounts to a substantial part of Switch’s song.

If the contested part is indeed “entirely commonplace”, the argument would follow that it is not sufficiently original for copyright to protect that part; this would follow the finding in Infopaq (C‑5/08) that the part itself should contain the expression of the author’s own intellectual creation.  

In the High Court on Monday, Sami Switch’s barrister stated to Ed that “the evidence is overwhelming that at the time of writing Shape of You, your songwriting process involved collecting ideas”. Sheeran responded: “You say it’s overwhelming, I don’t agree with that”. This line of questioning will have been to show that Sheeran derived Shape of You from Oh Why.

It’s not the first claim Ed Sheeran has faced: in a dispute over his 2015 song Photograph, he gave a share of the song’s royalties and a £4 million payment to two writers of the 2011 song Amazing by Matt Cardle.

The trial is expected to last around three weeks.