La lite Ed Sheeran c. Sami Chockri (Sami Switch) è stata decisa in data 6 aprile 2022 dalla UK BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES INTELLECTUAL PROPERTY LIST, guiduce Zacaroli, EWHC 827 (Ch) Case No: IL-2018-000095 .
Il secondo lamenta il plagio della propria canzone “Oh why” da parte del primo con la canzone “Shape of you”.
Impressione nella sentenza il grado di analiticità dell’esame fattual-musicale condotto dal gidice.
Il quale alla fine rigetta la domanda ed anzi concede l’accertamento negativo formale di non copiature, § 207 ss.
Premesse di ordine processual-probatorio:
- In music cases, it is the sounds that are more important than the notes: see Copinger and Skone James on Copyright (18th ed) at [3-125]. This depends to a large degree on the aural perception of the judge: Francis Day & Hunter v Bron  1 Ch 587, per Upjohn LJ at p.618.
- While the legal burden rests with the person alleging infringement, in the case of conscious copying the evidential burden shifts to the alleged infringer if there is proof of sufficient similarity and proof of access. There was some debate as to whether what was required was proof of access, or proof of the possibility of access.
- The weight of authority supports the former: see, for example, Designers Guild (above), per Lord Millett at p.2425E; Baigent v Random House  EWCA Civ 247 at , although I do not think anything turns on it in this case. Tens of thousands of new songs are uploaded to internet sites daily. It clearly cannot be enough to shift the burden of proof that a song was uploaded to the internet thereby giving the alleged infringer means of accessing it. In every case, it must be a question of fact and degree whether the extent of the alleged infringer’s access to the original work, combined with the extent of the similarities, raises a sufficient possibility of copying to shift the evidential burden. Where, for example, the original work was highly individual or intricate, and the alleged infringing work was very close to it, then only limited evidence of access may be sufficient in order to shift the burden. The same would not be true, on the other hand, where the original work was simple and involved relatively common elements.
- Irrespective of where the burden lies, infringement requires there to have been actual copying, which necessarily entails that the alleged infringer not only had access to the original work, but actually saw or heard it.
- The leading case on subconscious copying is Francis Day & Hunter v Bron (above), in which the Court of Appeal established that, although it was possible to demonstrate that a person had infringed copyright without intending to do so, it was nevertheless necessary to establish “proof of familiarity” with the allegedly copied work, as a prerequisite to establishing infringement: and that there was a causal link between the alleged infringing work and the original work: see Wilmer LJ at p.614 (with whom Upjohn LJ agreed). Diplock LJ also spoke of the clear need for a causal connection between the two works (at p.624).
- Whether there has been subconscious copying is a question of fact to be determined on the basis of all the evidence (and does not rest on the shifting of an evidential burden: see Mitchell v BBC (above) at ). There will rarely, if ever, be direct evidence of subconscious copying, so it is necessary – as with any issue where direct evidence is lacking – to reach a conclusion based on inferences from other evidence. The following direction which the trial judge, Wilberforce J, had given himself was approved by the Court of Appeal in Francis Day (at pp.614-615):
“The final question to be resolved is whether the plaintiffs’ work has been copied or reproduced, and it seems to me that the answer can only be reached by a judgment of fact upon a number of composite elements: The degree of familiarity (if proved at all, or properly inferred) with the plaintiffs’ work, the character of the work, particularly its qualities of impressing the mind and memory, the objective similarity of the defendants’ work, the inherent probability that such similarity as is found could be due to coincidence, the existence of other influences upon the defendant composer, and not least the quality of the defendant composer’s own evidence on the presence or otherwise in his mind of the plaintiffs’ work.”
Conclusioni, prima parte, § 200 ss:
- Mr Sutcliffe urged me to stand back from the detail and focus on the bigger picture. The case, he said, boiled down to four unassailable points: the similarities between the songs, not by a laser-like focus on individual elements (because to do so risked losing the song), but by listening to the sounds as a whole; the “one-in-a-million” chance of two unique sounds correlating with one another within the space of months; the three “fingerprints” in Mr Sheeran’s work; and the lack of credible explanation from the claimants for the creation of the OI Phrase.
- Of necessity, in view of the nature of the allegations in this case, I have analysed in some detail the musical elements that went into the creation of Shape, but I agree with Mr Sutcliffe that it is important to stand back from the detail. When I do so, however, I come to the opposite conclusion to him. It is in reality the defendants who have focused on the three points of particular similarity between Oh Why and Shape, while ignoring points of difference, the fact that each element is a common building block in music of this and many other genres, and the use of the same or similar elements in other parts of Shape and in other Ed Sheeran songs.
- Having reviewed all the circumstances, their use together in the OI Phrase by the writers of Shape is explained in my judgment by reasons other than copying. The “one-in-a-million” chance of them being used together (and the fact that the precise notes, vocalised and harmonised in the same way has not been found before) is no more than a starting point when considering whether one is copied from the other. While Mr Chokri’s initial reaction to the similarities, posted on Facebook in January 2017, is understandable, coincidences (which, by definition, would not be remarked upon in the absence of marked similarities) are not uncommon.
- Listening to the sounds as a whole, as urged by Mr Sutcliffe, the two phrases play very different roles in their respective songs. The OW Hook is the central part of the song, and reflects the song’s slow, brooding and questioning mood. Without diminishing its importance, the OI Phrase plays a very different role: something catchy to fill the bar before each repeated phrase “I’m in love with your body”. The use of the first four notes of the rising minor pentatonic scale for the melody is so short, simple, commonplace and obvious in the context of the rest of the song that it is not credible that Mr Sheeran sought out inspiration from other songs to come up with it. As to the combination of elements upon which the defendants rely, even if Mr Sheeran had gone looking for inspiration, then Oh Why is far from an obvious source, given the stark contrast between the dark mood created by the OW Hook in Oh Why and the upbeat, dance feel that Mr Sheeran was looking to create with Shape
205. Accordingly, for the reasons I have set out above, I conclude as follows:
(1) While there are similarities between the OW Hook and the OI Phrase, there are also significant differences;
(2) As to the elements that are similar, my analysis of the musical elements of Shape more broadly, of the writing process and the evolution of the OI Phrase is that these provide compelling evidence that the OI Phrase originated from sources other than Oh Why;
(3) The totality of the evidence relating to access by Mr Sheeran to Oh Why (whether by it being shared with him by others or by him finding it himself) provides no more than a speculative foundation for Mr Sheeran having heard Oh Why;
(4) Taking into account the above matters, I conclude that Mr Sheeran had not heard Oh Why and in any event that he did not deliberately copy the OI Phrase from the OW Hook;
(5) While I do not need to resort to determining where the burden of proof lies, for completeness:
(a) the evidence of similarities and access is insufficient to shift the evidential burden so far as deliberate copying is concerned to the claimants;
(b) the defendants have failed to satisfy the burden of establishing that Mr Sheeran copied the OI Phrase from the OW Hook; and
(c) even if the evidential burden had shifted to the claimants, they have established that Mr Sheeran did not deliberately copy the OI Phrase from the OW Hook.
(6) Finally, again taking into account all the matters I have considered above, I am satisfied that Mr Sheeran did not subconsciously copy Oh Why in creating Shape.