Legal row over Ed Sheeran hit Shape Of You ‘deeply traumatising’, court told

Ed Sheeran and his co-authors deny that Shape Of You copies part of 2015 song Oh Why.

Ed Sheeran (Yui Mok/PA) (PA Wire)

A legal row over the copyright of Ed Sheeran’s hit Shape Of You has been “deeply traumatising” for the music star and his co-writers, the High Court heard.

Their barrister, Ian Mill QC, also described the High Court dispute over their 2017 song as “terribly, terribly unfortunate” at a hearing in London on Monday.

“This case should never have got to trial,” he said, adding: “My clients are entitled to be vindicated.”

Mr Sheeran and his co-authors, Snow Patrol’s John McDaid and producer Steven McCutcheon, deny that Shape Of You copies part of 2015 song Oh Why by Sami Chokri.

There is no credible basis upon which to suggest that Mr Sheeran had ever heard Oh Why in advance of writing Shape Of You

Ian Mill QC

Mr Chokri, a grime artist who performs under the name Sami Switch, and his co-writer Ross O’Donoghue, claim that an “Oh I” hook in Shape Of You is “strikingly similar” to an “Oh Why” refrain in their own track.

Giving his closing arguments on Monday, Mr Mill described the case alleged against the Shape Of You co-writers as “impossible to hold”.

Mr Mill said it appeared that in order to support Mr Chokri and Mr O’Donoghue’s version of events “an awful lot of people” would have to come to court to tell “untruths” during the trial.

In his written arguments, Mr Mill claimed that Mr Chokri and Mr O’Donoghue’s case that Oh Why was allegedly consciously copied was “so strained as to be logically unintelligible”.

“The contemporaneous documents and evidence overwhelmingly support a case of independent creation,” he said.

Mr Mill added that an alternative allegation that Oh Why was subconsciously copied was “equally hopeless”.

“There is no credible basis upon which to suggest that Mr Sheeran had ever heard Oh Why in advance of writing Shape Of You,” Mr Mill said.

He added that Mr Sheeran and his co-writers “were categorically clear that they went into the writing session at Rokstone Studios on October 12 2016 with no preconceived ideas as to whatever it was that they would write that day”.

Shape Of You’s “Oh I” post chorus was “organically developed through a process of experimentation and improvisation”, Mr Mill said, highlighting that Mr Sheeran described his work with Mr McDaid as “like a game of tennis” with ideas “bounced back and forth”.

He said the speed with which the song was written was “not remotely unusual” for Mr Sheeran.

Mr Mill also rejected suggestions that Mr Sheeran and Mr Chokri had “overlapping circles” of artists, writers and producers in common and that there had been a “concerted plan” to bring Oh Why to Mr Sheeran’s attention.

In court he claimed there had been a “manifest failure” to promote Oh Why on social media.

In his written arguments, Mr Mill said Mr Chokri and Mr O’Donoghue’s case “amounts to a series of tenuous connections and bare assertions contradicted by the contemporaneous documents and the unequivocal evidence of a significant number of relevant witnesses”.

He claimed they had failed to establish that the “Oh I” post chorus reproduced “the expression” of their “intellectual creativity”, adding that the alleged elements of similarity they relied on were “generic and unprotectable”.

“They comprise, in substance, the use of the first four notes of the minor pentatonic scale combined with the use of octaves and harmonies in a vocal chant.

“Qualitatively assessed, these elements cannot be characterised as the elements which conferred originality on Oh Why as a musical work.”

Andrew Sutcliffe QC, for Mr Chokri and Mr O’Donoghue, is due to begin his closing arguments on Tuesday.

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

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

The trial before Mr Justice Zacaroli is expected to conclude on Tuesday with his judgment coming at a later date.