Ed Sheeran - and the difference between copyright and registered trade marks

Many readers will have already seen and read the recent press coverage concerning Ed Sheeran successfully defending a claim of copyright infringement before the High Court of England & Wales.

Whilst the decision very much depended on the particular facts as determined by the judge, the case highlights key differences between the rights granted by copyright and registered trade marks.

What was the case about?

In summary, in Sheeran & Ors v Chokri & Ors [2022] EWHC 827 (Ch), the Court was asked to assess whether Ed Sheeran and/or his co-writers had, when writing the song “Shape of You”, either deliberately or sub-consciously copied a substantial part of the song “Oh Why”.

What was decided?

The Court held that whilst there are similarities between the part allegedly copied from “Oh Why” and the part in question found in the song “Shape of You”, there are also significant differences. As to the elements that are similar, the judge held that his analysis of the musical elements of “Shape of You” more broadly, of the writing process and the evolution of the part supposedly copied from “Oh Why”, is that they provide compelling evidence that the part in question originated from sources other than “Oh Why”. In other words, copying had not taken place. Moreover, the evidence did not prove that Ed Sheeran had ever heard the song “Oh Why” before writing “Shape of You”, let alone deliberately (or sub-consciously) copied a substantial part.

Lessons to be learned

The case highlights that to succeed in a copyright infringement case you have to prove, on the balance of probabilities, that the original copyright work was copied. While the legal burden rests with the person alleging infringement, the evidential burden shifts to the alleged infringer if there is proof of sufficient similarity and proof of access. In this case, copying could not be proved. The evidence indicated that Ed Sheeran had independently created the part of the song “Shape of You” that had allegedly been copied from the song “Oh Why”.

This is not the case when dealing with registered trade marks. They are monopoly rights. To succeed with a claim for infringement of a registered trade mark the owner does not have to prove that the defendant deliberately or subconsciously copied the registered trade mark. All they have to prove is that they own the registered trade mark in question and that the defendant has used a sign which infringes the mark, whether they intended to or not. Independent creation is no defence to registered trade mark infringement.

For more information on this article, please contact Carl Steele.

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