Music experts disagree in Ed Sheeran court case

17 March 2022

By Mark Savage

BBC Music Correspondent

Music experts have given contrasting views over whether Ed Sheeran copied the work of another singer when he wrote his 2017 single Shape Of You.

The star denies stealing the chorus of Sami Switch's Oh Why for the "oh I, oh I, oh I" hook of his hit song.

Forensic musicologists were called by both sides to argue the case at London's High Court.

One said the songs were "distinctly different" but the other argued they contained "significant similarities".

Shape Of You was the world's best-selling song of 2017, with more than three billion plays on Spotify alone.

The track earns Sheeran and his co-writers Steven McCutcheon and Johnny McDaid about £5m a year, despite almost 10% of the payments being frozen due to the ongoing copyright dispute, the court heard.

'Entirely commonplace'

Wednesday's testimony came from copyright consultant Christian Siddell and Anthony Ricigliano, a former head of music theory at the Manhattan School of Music, who previously helped Led Zeppelin win a plagiarism trial over Stairway To Heaven.

In a joint written statement, they agreed that "when heard in the context of their respective works, the words 'Oh why' and 'Oh I' may be phonetically indistinguishable from each other to the casual listener".

They also agreed that neither of them had found "the same combination" of phonetic sounds, pitch and rhythm "in any other compositions".

However, they differed on whether Sheeran had copied his song from Sami Switch, whose real name is Sami Chokri, and his co-writer Ross O'Donoghue.

Mr Ricigliano, who was instructed by Sheeran's lawyers but told the court he was "completely impartial", said he considered the extent of the alleged similarities to be "overstated".

He wrote that "the overall design and musical development of the melodic, harmonic and lyrical content in the relevant phrase in Shape Of You are distinctively different from that utilised in Oh Why".

Calling the similarities "coincidental", he added that it was "objectively unlikely" that any overlap came as a "result from copying".

In his written evidence, Sheeran noted that his song's "Oh I" melody is based on "a basic minor pentatonic pattern" which is "entirely commonplace".

Mr Ricigliano agreed, paraphrasing a quote from West Side Story composer Leonard Bernstein: "The pentatonic scale is humanity's favourite scale and is so well known that one can find examples of it from all corners of the Earth".

In court, Andrew Sutcliffe QC, representing Mr Chokri and Mr O'Donoghue, asked him: "You accept, don't you Mr Ricigliano, that despite all your research you have not found any examples in any corner of the earth over the past 200 years which sound phonetically the same as the chorus in Oh Why and the post chorus in Shape Of You?"

"That's correct," Mr Ricigliano said.

"Do you not find this extraordinary?" Mr Sutcliffe asked, with the expert replying: "No".

Mr Siddell, who was instructed by Mr Chokri's lawyers, disagreed, saying the similarities between the two songs were "so numerous and striking that the possibility of independent creation is… highly improbable".

He said the two melodies were "nearly identical in respect of their rhythm and pitch", the phonetic sounds of the vocal lines were "musically indistinguishable to the ear" and other compositional similarities included the use of "phrase repetition" and "the musical dynamics".

The crossover was "unlikely to be the consequence of coincidence", he added.

"Had I been consulted in a 'copyright compliance' capacity as to whether a licence should be sought from the writers of Oh Why, my guidance would have been, in summary, that either the melodic phrase should be omitted and replaced with original new material or a licence should be obtained."

Sheeran and his co-writers deny copying Mr Chokri's song, stating they had not heard it before the copyright claim was raised.