March 17, 2022 Musicology 2 Comments

Ed Sheeran is in court this week because his megahit “Shape Of You” bears some similarity to Sami Chokri’s “Oh Why.” And you’re saying to yourself, “That guy gets sued a lot, doesn’t he?”

Ed Sheeran might get sued more than any musician in the world today. This isn’t even the only litigation he’s got going presently! And I’ve written quite a lot about why he should prevail in the other case which compares Thinking Out Loud to Let’s Get It On but still, we probably shouldn’t be surprised that he was described by opposing counsel in the Chokri case, according to a Guardian Article, as a “magpie…(who)… borrows ideas and throws them into his songs.” It sounds pretty damning, right? I myself, once, opined that Ed likely unconsciously lifted a bit of his hit, “Photograph.” So, where there’s smoke, right? No!

I don’t smell smoke. I’ll explain.

Here’s “Oh Why.”

And here’s Shape Of You.

Having read through some of the news coverage about expert testimony at this trial, I find myself sympathizing with the judge more than either litigant. He’s living in a Monty Python argument clinic sketch. The trial seems to be very “musicologist vs musicologist,” and too full of “yes it is,” vs “no it isn’t.” They see the facts, largely agreeing on them, but those facts lead them to different conclusions about the likelihood of copying and the originality of the elements the works share. And I gladly admit, this work is subjective. And I’m sympathetic to the triers because the facts won’t tell the story without the right perspective. Here expert witnesses get to opine as though one view is as valid as the other, in no small part perhaps enabled by virtue of subjectivity being difficult to disprove.

Here’s how I see it.

The relevant similarities are these and appear in just this one section:

  • “Oh Why” and “Shape of You,” respectively, sing these phrases: “Oh why. Oh why. Oh why. Oh.” and “Oh I, Oh I, Oh I, Oh I.”
  • All those note values are consistent duration eighth notes.
  • The pitches involved are the same. To illustrate, let’s use solfege because it’s so easy here: The pitches are: “fa fa, do do, re re, mi mi.” (you can omit that last “mi” in the case of “Oh Why,” which contains just seven utterances to “Shape’s” eight.)

So, if those are the essential similarities, why do they direct me to believe that this is better attributed to coincidence than copying and isn’t unlawful appropriation?

Is “Oh Why” the same lyric as “Oh I?” I certainly don’t think so. Does the fact that they’re phonetically similar matter? Sure, a bit. Sonically, they’re the same. But they aren’t just nonsensical utterances. Words have meaning and these mean different things, especially in context. Lamenting “Oh, why?” over and over again is different from “Oh I,” as an embellishment — “oh I oh I oh I, I’m in love with…” I’m not a poetry expert, but this seems a reasonable interpretation.

The consistent duration eighth notes are at least somewhat double-edged for us. Yes, the notes are the same rhythm and duration throughout, which sounds like rather the opposite of “distinctive.” This was true of the evenly spaced notes in the contentious ostinatos from Katy Perry’s “Dark Horse” v “Joyful Noise” case. But of course, they’re similarly indistinct aren’t they? That’s a creative choice.

But a significant difference lies in their placements in musical time — in their respective measures. The “oh’s” and “why’s” or “I’s” fall differently in terms of rhythmic placement. They are offset relative to one another. You can go back and listen, and I can illustrate for you. At some time in elementary school music class, most of us are taught to count 4/4 “common time” music as “One and Two and Three and Four and.” The numerals fall on the more often emphasized “down” beats, and the “and’s” fall on the “weaker” “up” beats.

“Oh I, Oh I, Oh I, Oh I” from Shape of You is precisely “One and Two and Three and Four and.”

“Oh Why, Oh Why, Oh Why, Oh” from Oh Why begins on the “and” that follows “one,” as in “and Two and Three and Four and.”

So, should we characterize these as almost the same because they’re just shifted a half a beat? Or should we consider them about as different as they could be, since there are only two readily available and maybe a couple other far less available options for placing seven or eight uniform duration syllables (eighth notes) in a measure of music? Both arguments are available. And it hardly matters. Why?

Because neither of these deserves broad copyright protection. Yes, copyright protects a modicum of creativity, but the closer you get to a mere modicum, the thinner your protection should be.

The pitches are not merely from a scale, they are the first four successive pitches of the minor pentatonic scale, in order no less. Copyright does not protect scales.

“Oh why?” is not a protectable phrase. That seems obvious. And “Oh why, oh why?” is not a protectable phrase. You’ve heard it your whole life. I’m thinking “oh where oh where has my underdog gone?” And so how many “Oh Why’s” might be protectable? We are left (maybe?) pointing to that last hanging “oh” as the modicum. But, “Shape” doesn’t do that.

What if we argued, simply, “all we have here is a bunch of ‘oh’s’ and ‘why’s!’ Shouldn’t these need to be stunningly identical in every way before we imagine it’s copying and not coincidence? I’ve asked that question in a fashion that invites bias. I would do it again.

Consider the simplicity of this account of the proceedings from Daily Mail UK.

In court, Andrew Sutcliffe QC, representing Mr Chokri and Mr O’Donoghue, asked the expert: ‘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’.

Daily Mail UK

I also do not find it at all extraordinary. The similar elements in both of these songs are a bit analogous to the unprotectable unoriginal ostinato in Dark Horse. They are comprised of seven or eight notes sung in uniform (not distinctive) duration. The pitches are Fa Do Re Mi, which are the first four notes of the minor pentatonic SCALE (also, not distinctive nor protectable). The lyrics are really just TWO non-identical mono-syllabic words over and over. (This is similar to why Dua Lipa’s Levitating doesn’t infringe on Artikal Sound System’s Live Your Life.) And the rhythmic placements are offset and non-identical. So the music isn’t the same at any point!

There’s no reason to believe Sheeran needed to have heard Chokri’s song to have come up with Shape. And the material the two share can be characterized as simple, scalar, and arguably brief enough to enjoy only so-called “thin” protection, so the demand is that the material be extremely alike, and these aren’t.

The judge got this right. Sheeran got it right. I hope he’s as successful in what’s coming down the pike.

Let’s Get It On.

Written by Brian McBrearty