May 31, 2022
As reported by Lexology, Ed Sheeran was successful in a dispute over his massive hit record “Shape of You” (released in January 2017) against British artist Sami Switch, who had commenced the copyright infringement action in September 2017, claiming that the song infringed the copyright of his record “Oh Why” (released in March 2015).
Mr. Switch, a co-writer, and a social media company (the assignee of Mr. Switch’s copyright in the song) claimed that the eight-bar section of “Shape of You” – in which “Oh I” is sung three times to a particular tune – is copied from the eight-bar chorus of “Oh Why”, in which the phrase “Oh Why” is repeated to a similar tune.
Mr. Switch et al. had notified the Performing Rights Society Limited that they should be credited as songwriters of “Shape of You” and the Society suspended all payments to Ed Sheeran and other entities involved in writing and publishing “Shape of You” in respect of the public performance/broadcast of the song. Thus, Ed Sheeran et al. commenced proceedings seeking declarations that they had not infringed the copyright in “Oh Why”.
In granting declaratory relief to Ed Sheeran et al., the Court found that, while there are similarities between the two hooks, there are also significant differences, and was swayed by evidence that Sheeran’s hook originated from sources other than “Oh Why”.
Authors: Erik Axell and Caitlin Woodford