“Everything that is not tradition is plagiarism.” That’s according to the famous aphorism by Spanish writer Eugenio d’Ors i Rovira. It’s a sentiment that’s become surprisingly relevant in today’s constant court battles over copyright infringement in music. The latest artist to take to the stand in one such copyright trial is British singer-songwriter Ed Sheeran, who appeared in London’s High Court on Tuesday over allegations he deliberately plagiarized the hook of his smash hit Shape of You.
Musicians Sami Chokri, who goes by the artist name of Sami Switch, and Ross O’Donoghue argue that Sheeran copied the “Oh I” hook of Shape of You from their song Oh Why. Released in 2017, Shape of You was the highest-selling song of that year and it remains the most-played track in the history of Spotify, with more than 3 billion streams. But since Chokri and O’Donoghue filed the lawsuit in 2018, royalties linked to Shape of You, which are estimated at €24 million ($26.5 million), have been frozen.
“I have always tried to be completely fair in crediting anyone who makes any contribution to any song I write,” Sheeran told the court on Tuesday. “I do refer to other works on occasion when I write, as do many songwriters. If there is a reference to another work, I notify my team so that steps can be taken to obtain clearance.”
Indeed the 31-year-old artist had no issue with admitting that Shape of You incorporated some of the chord progressions and rhythm of the song No Scrubs by TLC. Sheeran, however, denied having any prior knowledge of the track Oh Why when he composed his famous song.
The barrister for the prosecution, Andrew Sutcliffe QC, who is known for his ruthlessness in the courtroom, accused the pop star of listening to Oh Why on the YouTube channel of SBTV: Music, a London-based platform for emerging artists, and of learning of their work through mutual friends. The barrister argued that while Sheeran has had no problem in recognizing the contributions of famous music stars such as Rihanna, Jay-Z and Coldplay, he treated lesser-known artists differently. Sutcliffe told the court that Sheeran “borrows ideas and throws them into his songs, sometimes he will acknowledge it but sometimes he won’t.”
Chokri and O’Donoghue claim that Sheeran completely plagiarized the hook to their song – “Oh why, oh why” – in Shape of You, which goes “Oh I.., oh I.” “It was a phrase you already had in your head after listening to the chorus of Sami’s song Oh Why, wasn’t it?” insisted Sutcliffe, who played excerpts from the Shape of You recording sessions. In one recording, Sheeran insists on changing the hook because it was “a bit close to the bone.” When asked about this in court, the singer replied: “We thought it was a bit too close to a song called No Diggity by Blackstreet.”
This is not the first time that the British pop star has had to address allegations of supposed plagiarism in court or in out-of-court settlements. Composers Thomas Leonard and Martin Harrington received a payment of $5 million and 35% of the gross publishing revenues Sheeran’s song Photograph, which sounded similar to Amazing, a track the two had written for Matt Cardle, the former winner of X-Factor.