The High Court has just handed down a judgment that Ed Sheeran’s “Shape of You” does not infringe copyright in the 2015 song “Oh Why” written by Sami Chokri and Ross O’Donoghue. Shape of You was a worldwide hit, becoming the best-selling song of 2017 in the UK and the most streamed track in Spotify’s history.
Mr. Chokri, a grime artist who performs under the name “Sami Switch”, and his co-author Mr. O’Donoghue claimed that the “Oh I” hook in “Shape of You” is “strikingly similar” to the repeated line “Oh Why” in their track.
During the 11-day trial in London in March 2022, Mr Sheeran denied that he “borrows” ideas from unknown artists without acknowledgment, and insisted that he “always tried to be completely fair” in crediting people who contribute to his albums.
Judge Antony Zacaroli ruled that Mr Sheeran had “neither deliberately nor subconsciously copied” Mr Chokri’s song. Whilst he acknowledged that there were “similarities between the one-bar phrase”, he said that “such similarities are only a starting point for a possible infringement” of copyright. The Judge studied the musical elements of “Shape of You” and “Oh Why” and concluded that there were differences between the relevant parts of the songs. In response to Mr. Chokri’s claim that Mr. Sheeran must have heard the song before writing “Shape of You”, Judge Zacaroli said, “I find, as a matter of fact, that he had not heard it”.
What is joint ownership of copyright?
As we see from the facts of the “Shape of You” case, copyright can be jointly owned by collaborating authors. It can, however, bring significant complexities.
Joint ownership, also called co-ownership of copyright, may arise in a variety of situations, including artistic collaborations, joint ventures, software development, and shared research. It often occurs during the early stages of setting up a business. It may also arise where a third party is commissioned to create work alongside company employees. Copyright owners enjoy copyright protection automatically in the UK as soon as a qualifying work is created and there are no formalities to comply with.
Unless they agree otherwise, co-owners of work can only exploit the jointly held copyright jointly. Neither can assign (i.e. transfer) or licence the right to use the copyright without the consent of the other(s).
Importantly, a co-owner cannot sue a third party for infringement without the involvement of the other owners. This can be a real problem when one joint owner leaves a business or the parties fall out.
Is it, therefore, essential to consider and document at the outset of any project, transaction, or collaboration where joint ownership of copyright might arise, what rights each co-owner should have to:
- Exploit the copyright themselves, e.g. by reproducing the copyrighted work.
- Grant copyright licences to others.
- Assign the copyright, e.g. as part of the sale of a business that uses jointly owned copyright in its products or business processes.
- Pursue third parties for copyright infringement.
- The best way to avoid costly and time-consuming legal disputes about joint ownership of copyright is to enter into a written agreement as early as possible, ideally before the work starts. This should not just address the question of ownership but include the rights to licence, assign, and enforce the copyright. The cost involved is nothing compared to the cost, stress, and risk of not taking this step.
Find out more
If you would like help or support with the joint ownership of copyright, or you think somebody has infringed your copyright, talk to a specialist Intellectual Property lawyer for advice on 01392 207020 or email enquiries@tozers.co.uk.
