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16th August 2018

Oh I, oh why, might it be copyright infringement?

16th August 2018

Oh I, oh why, might it be copyright infringement?

Laura Trapnell

Posted: 16th August 2018

T: 023 8048 2114

E: Email Me

If you listen to The Secret Sound on radio Solent in the mornings, you may have thought “I know that tune” only to find that after the great reveal, it was a different song altogether. Music often reminds us of other tunes and it remains in our subconscious for far longer than we might think.

There is another very interesting case going through the High Court at the moment relating to allegations of copyright infringement in songs and touching on murky threshold between taking lawful creative inspiration from an earlier copyright work and unlawfully misappropriating protected elements from it.

You may recall that several years ago, Robin Thicke’s hit, Blurred Lines, caused controversy after allegations that it infringed copyright in Marvin Gaye’s record, Got To Give It Up. This time, it is Ed Sheeran (and others – Steven McCutcheon co-songwriter, John Mcdaid Singer from Snow Patrol and their publishing companies) who are seeking a declaration of non-infringement from the High Court after singer-songwriter Sam Chokri has alleged that the song “Shape of You” infringes his previous hit “Oh Why”. Both cases were started by the parties on the receiving end of the allegations, acting in a pre-emptive way to obtain the declaration of non-infringement and clear their names.

In both cases, the allegations were based on similarities between the songs as evidenced by musicologist reports which looked at musical elements within the songs, the structure of the lyrics between the choruses, tone, texture, harmonic progression, melodic riffs and in the Chokri allegations, rhythmic clicking and the phrase ‘oh I, oh I, oh I’ which in the Sheeran song, becomes ‘oh why, oh why, oh why’. (If you say ‘oh I’ repeatedly quite quickly, you will hear the issue!)

Those of you with some copyright knowledge will know that being ‘similar’ doesn’t necessarily mean that copyright has been infringed. The test is whether or not (i) a ‘substantial part’ of (ii) a copyright material (iii) has been copied and the starting point is always to establish that the original work is indeed ‘original’ in copyright terms – i.e., is it unique enough in the first place to benefit from copyright protection.

On this point (ii), different musical elements might be considered an idea if (1) they so well known that expression of them requires no sufficient skill and labour (2) the ideas have been expressed in such a trivial manner that they do not satisfy the test for originality, or (3) the expression of the ideas does merit copyright protection. Despite the Sheeran gang asserting that the tone, the clicking and other composition techniques are merely ideas and are too general to be the expression of ideas, Chokri contended that the accumulative affect of all of the features mentioned above ( i.e. the way that he has put them together) results in an original and unique work and I agree with him.

This then leaves the issue of whether or not the work has been copied (iii) and if so, whether a substantial part has been taken (i).

‘Copying’ is an interesting concept under copyright law as it can happen directly (i.e., making a physical copy) or indirectly (i.e., seeing or hearing something and then creating your own version). The Sheeran song was created in October 2016 (some 19 months after the release of the Chokri song) and with this being a collaborative work between friends, the creators videoed the session, presumably for social media exploitation afterwards. The video shows the light hearted creation process and discussion of other songs and themes but none mentioning the Chokri song. The Sheeran gang assert that there has been no direct copying of any material. However, Chokri’s solicitors say it doesn’t matter – the song was available on various platforms such as Spotify, iTunes, YouTube and Facebook and that all the artists knew each other and moved in the same social circles. Therefore, as the song was on general public release, they must have heard it at some point and indirect copying has occurred. (Interestingly, in the Blurred Lines case, Robin Thicke admitted to listening to Gaye’s Got To Give It Up and during an interview said “Pharrell and I were in the studio and I told him that one of my favourite songs of all time was Marvin Gaye’s Got to Give It Up. I was like, Damn, we should make something like that, something with that groove.” Oops!)

It will be up to the Judge to decide whether copying took place, either directly or indirectly and we look forward to seeing some clarity on the issue as there has been minimal discussion on it in case law to date.

Finally, has a substantial part been taken? Under copyright law, ‘substantial part’ is assessed not only in terms of quality but also in terms of quality and the original work should be considered as a whole, provided that the particular part in question consists of the expression of the author’s intellectual creation, rather than being simply ‘an idea’ which is not original. Recent case law suggests that the court is not required to assess the individual elements on their own merit as that would be treating each idea as a separate literary work in its own right. The court will look at the song as a whole and make its findings on that basis and I for one, am looking forward to the decision!

If you would like to discuss any copyright issues, musical or otherwise, then please contact me. To read more on the intellectual property services we provide please click here.

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Laura Trapnell

Posted: 16th August 2018

T: 023 8048 2114

E: Email Me