As widely reported, Ed Sheeran successfully defeated allegations that he infringed the copyright in an earlier song “Oh Why” (by Sami Chokri, who performs as Sami Switch).
Aside from the analysis in the judgment, what makes this an interesting case is how a strategic decision by Mr Chokri led to Mr Sheeran, despite being alleged infringers, initiating proceedings seeking a declaration from the court that there had been no infringement and thereby the claimant in the court proceedings.
It is understood that Mr Chokri and his co-defendants raised the allegation of copyright infringement in pre-action communications between the parties.
Mr Chokri and his fellow defendants then took steps to notify the Performing Rights Society that they thought they should be credited on Sheeran’s “Shape of You”. Without more, this resulted in the song being “put into suspense” and all payments, thought to be around £2.2 million, in respect of public performance and broadcast of the song were halted. This, arguably significant, step was taken without informing Sheeran or anyone else (and, it is understood, against the advice of Chokri’s own solicitors), but, also significantly, after initial correspondence between the parties and with fair warning given that should this step be taken, then the claimants (Mr Sheeran and his co-writers) would protect their position. True to their word and shortly after that step, the claim seeking a declaration of non-infringement, was issued.
In his judgment of 6 April 2022, Mr Justice Zacaroli acknowledged that “…whether it was true or not, the claimants were justified in thinking that putting Shape [of You] into suspense at the PRS was a tactic designed to extract a settlement” (1).
Certainly, it seems that Sheeran may have felt compelled to seek the declaration of non-infringement and perhaps more importantly, to keep his and his fellow songwriters’ reputations intact, rather than bow to what he considered a “baseless” claim and one which, it appears, the parties alleging infringement were somewhat reluctant to follow through by way of issuing a claim at court, but were willing to use inexpensive means to exert pressure.
Ultimately, the court issued a declaration of non-infringement in favour of Mr Sheeran and the other claimants, and dismissing Chokri’s counterclaim in its entirety (no doubt leaving Mr Chokri with a substantial costs order to pay).
(1) Sheeran v Chokri  EWHC 827 (Ch), paragraph 217.
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