Litigation – Risks and Rewards
The High Court handed down Judgment in Ed Sheeran’s copyright dispute on 5 April 2022, finding that he and his co-writers of the song “Shape of You” had not infringed the copyright of Sami Chokri and Ross O’Donoghue in their song “Oh Why”.
The case was unusual because Sheeran and his co-writers initiated the court proceedings by asking the court to declare that they had not infringed the Defendants’ copyright.
That strategy carries a significant level of risk. It is effectively an invite to the Defendants to issue a counterclaim for copyright infringement, which they might not otherwise pursue. We will never know whether Chokri and O’Donoghue would have gone to the trouble and expense of pursuing a money claim for copyright infringement if they were not forced to defend themselves. But they were, and they did.
The cost of the dispute will have been immense. Proceedings lasted from 2018 until March 2022, culminating in a trial lasting 11 days. Contrasting expert evidence from forensic musicologists was given by both sides. Both of the experts attended trial and were cross-examined. Both sides’ legal teams at trial were led by a QC. Sheeran’s barrister in particular is notable for having previously represented Placebo, Moby, Radiohead, Bob Geldof and the Duchess of Sussex.
Financial cost aside, Sheeran and his co-writers have spoken publicly about the drain they have felt on their creativity as a result of the proceedings.
Sheeran and his legal team would have been well aware of the risk of a counterclaim, and the potential cost of their intended tactics, before they instigated proceedings. Why, then, did they choose to take that step?
In fact, Sheeran issued proceedings in response to the Defendants asking the Performing Rights Society Limited (“PRS”) to credit them as co-writers of Shape of You, which had caused PRS to freeze royalty payments to Sheeran and the credited writers. Sheeran and his co-writers never confirmed the value of the frozen royalties, on the basis that they were only in court “to clear their names”, but the judgment suggests that it was at least £2.2m.
Faced with the apparent certainty of losing what the court described as “a substantial amount of money”, along with his valuable reputation as a songwriter, Sheeran’s strategy of asking the Court to declare that the Defendants had no right to be credited with helping to write Shape of You may have been a significant risk, but it was also a calculated one.
In the circumstances, it seems Sheeran and his co-writers correctly weighed the risks with the rewards. Sheeran’s reputation has been vindicated and a large sum of money will soon be released to the Claimants by PRS.
Litigation is expensive, time consuming and fraught with risk. However, in some circumstances it is unavoidable and is the correct course of action. The value of being properly advised and represented prior to and throughout court proceedings cannot be overstated.