Ed Sheeran labelled a ‘magpie’ in court fight over copyright infringement

The singer is in a legal battle with two songwriters, Sami Chokri and Ross O’Donoghue, who claim Sheeran’s 2017 hit rips off parts of their track Oh Why.

Chokri, a grime artist who performs under the name Sami Switch, and O’Donoghue allege that Shape Of You infringes “particular lines and phrases” of their song released in 2015.

They argue that a central “Oh I” hook in Shape Of You is “strikingly similar” to an “Oh Why” refrain in their own composition.

Their lawyers allege Sheeran “habitually copies” other artists and that it was “extremely likely” he had previously heard Oh Why.

But Sheeran’s lawyers have told the High Court that the singer and his co-writers, Steven McCutcheon and John McDaid, have no recollection of having heard Oh Why before the legal fight and deny the allegations of copying.

Sheeran and his co-authors launched legal proceedings in May 2018, asking the High Court to declare they had not infringed Chokri and O’Donoghue’s copyright.

In July 2018, Chokri and O’Donoghue issued their own claim for “copyright infringement, damages and an account of profits in relation to the alleged infringement”.

Sheeran, wearing a dark suit and tie, attended the start of a three-week trial over the copyright dispute at the Rolls Building in central London on Friday.

Andrew Sutcliffe QC, for Chokri and O’Donoghue, said the question at the heart of the case is “How does Ed Sheeran write his music?” and whether he “makes things up as he goes along” in song writing sessions.

The barrister said: “Or is his song writing process in truth more nuanced and less spontaneous… involving the collection and development of ideas over time which reference and interpolate other artists? This is the defendants’ case.

“Mr Sheeran is undoubtedly very talented, he is a genius. But he is also a magpie,” Mr Sutcliffe added.

“He borrows ideas and throws them into his songs, sometimes he will acknowledge it but sometimes he won’t.”

The barrister said this “depends on who you are and whether he thinks he can get away with it”.

Mr Sutcliffe later said it was “an extraordinary feature of this case that despite dismissing the Oh Why hook as common place the claimants have failed to find any other hook which is remotely similar”.

He claimed experts involved in the case had not found “another example of an oh why or oh I phrase with the same phonetic sound pitch and rhythm”.

In written submissions Mr Sutcliffe claimed experts “have been unable to identify any other example in the last 250 years which is remotely comparable”.

“We say this illustrates very clearly the improbability of the Shape of You hook being created independently,” Mr Sutcliffe told the court.

The hooks of both Shape Of You and Oh Why were played in the court room on Friday afternoon, with Sheeran showing no reaction as excerpts from both songs were played on the court’s speakers.

Mr Sutcliffe said: “The similarity between the two hooks is striking and immediately apparent.

“They sound almost identical, they are such that an ordinary, reasonably experienced listener might think that perhaps one had come from the other.

“This of course does not by itself prove that copying has taken place but it’s a vital starting point.”

Mr Sutcliffe alleged that it was “extremely likely” that Sheeran “heard it at some point even if he doesn’t recall”.

In written arguments, Mr Sutcliffe alleged Sheeran “has a propensity to collect ideas for songs” and that there was an “overwhelming case” that he “copies the work of other artists, including choruses and call-and-answer sections”.

The High Court also heard that PRS for music – the industry body that collects and distributes royalties – had suspended payment to Sheeran and his co-writers for the performances or broadcasts of Shape Of You.

Ian Mill QC, for Sheeran and his two co-writers, said the PRS revenue was a “very substantial income stream” for the three men in written submissions.

He claimed Oh Why was written when Chokri “was experiencing personal problems and feelings of self-pity” and that it was a “sombre composition which questions why there is so much pain and suffering in the world”.

Mr Mill said that “in stark contrast” Shape Of You was “an uplifting song about meeting a girl and falling in love”.

“The feeling evoked by Shape Of You could not be more different from that evoked by Oh Why,” he added.

The barrister later claimed Oh Why had “achieved little or no public recognition or success and limited exposure”, adding that seven months after the creation of Shape Of You it had received under 13,000 YouTube views.

He explained Sheeran worked at “extraordinary speed” and “writes almost all of his songs in under two hours”, with Shape Of You being created by its three creators “in the space of a few hours” in October 2016.

Mr Mill said that Chokri and O’Donoghue’s claim that Sheeran had “access” to their work was “at best, paper thin”.

He said there was “clear evidence” that at the time Shape Of You was written its creators had not heard Oh Why.

“Not only are there no contemporaneous documents which show Oh Why being sent to Mr Sheeran or those within his management, Mr Sheeran’s evidence is that he does not listen to any recordings sent to him by people who want to work with him, to avoid finding himself in the situation in which he finds himself in this case.

“Again, the defendants are clutching at straws,” Mr Mill said.

The barrister later said that there could not be a claim for the lyrical content of the song, as “‘Oh Why’ and ‘Oh I’ are self-evidently different.”

He continued: “The point of similarity only arises if one ignores the fact that ‘why’ and ‘I’ are different words, with different meanings and different functions in each song.”

Shape Of You was a worldwide hit, becoming the best-selling song of 2017 in the UK and the most streamed song in the history of Spotify.

The trial before Mr Justice Zacaroli continues on Monday, with judgment expected to be reserved until a later date.