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Ed Sheeran awarded £900,000+ costs following win in Shape Of You song-theft case

By Chris Cooke | Published on Wednesday 22 June 2022

Ed Sheeran and his ‘Shape Of You’ co-writers have been awarded more than £900,000 in legal costs following their win in the headline-grabbing song-theft case in the London high court in relation to that work.

Sheeran and his collaborators Johnny McDaid and Steven McCutcheon were accused of ripping off the earlier track ‘Oh Why’, by singer Sami Chokri, when they wrote ‘Shape Of You’ in autumn 2016. The allegations were mainly based on a musical segment shared by the two songs, in which Chokri’s lyrics went “oh why, oh why, oh why, oh”, while Sheeran sang “oh I, oh I, oh I, oh I”.

Chokri reckoned that Sheeran had got a copy of his track via mutual contacts in the music industry, while his legal team argued that the similarities between the two songs were so striking that it was “highly improbable” they’d been independently created.

But the Sheeran side countered that there was no firm evidence at all that the star had had access to Chokri’s work, while – they insisted – the musical segment shared by the two songs was commonplace in pop music,

In the end the judge hearing the case, Antony Zacaroli, ruled very much in Sheeran’s favour. He concluded in April that while there were similarities between the “oh why” and “oh I” segments, there were also differences.

He then stated: “My analysis of the musical elements of ‘Shape’ more broadly, of the writing process and the evolution of the [“oh I”] phrase, is that these provide compelling evidence that the [“oh I”] phrase originated from sources other than ‘Oh Why’”.

He then also added: “I conclude that Mr Sheeran had not heard ‘Oh Why’ and in any event that he did not deliberately copy the [“oh I”] phrase from the [“oh why”] hook … I am [also] satisfied that Mr Sheeran did not subconsciously copy ‘Oh Why’ in creating ‘Shape’”.

With that ruling made, the next matter to be dealt with was legal costs. With UK legal battles, the losers generally have to cover the costs that were incurred by the winners in pursuing the litigation.

However, Chokri’s legal team had various arguments as to why their client shouldn’t have to pay Sheeran et al’s lawyers, despite him losing the case. But, yesterday Zacaroli confirmed he was rejecting those arguments.

It was actually the Sheeran side that went legal first in this dispute, albeit only after the Chokri side had claimed ‘Shape Of You’ infringed ‘Oh Why’ and had logged a dispute with collecting society PRS which resulted in a portion of the ‘Shape Of You’ royalties being frozen. Chokri then countersued. But as a result, the Sheeran side are the claimants and the Chokri side the defendants.

In his ruling on legal costs, Zacaroli notes how the Chokri side “claimed that the conduct of the claimants, both before and during the proceedings, is such that they should be deprived of all of their costs”.

Running through the bad conduct alleged by the Chokri side, the judge continues: “The defendants allege that the claimants: failed to engage in pre-action correspondence; failed to remedy that default, by then failing to provide disclosure of documents (predominantly voice notes and project files) relating to how ‘Shape’ came to be written; [and] maintained that failure throughout the litigation”.

In addition to that, the Chokri side claimed that the Sheeran team “demonstrated ‘awkwardness and opacity’ so as to strengthen the defendants’ conviction that infringement had occurred; and failed (in the case of Mr Sheeran) to provide an adequate response to failings in disclosure, following a [court] order on … 2 Dec 2021″.

But, the judge confirms, he is not convinced by those arguments. “While I accept that the conduct of the parties is a matter which the court is entitled to take into account in exercising its discretion in relation to costs”, he says, “I am not persuaded that I should exercise my discretion otherwise than by ordering the defendants to pay the claimants all of their costs in such amount as will be determined on detailed assessment”.

Zacaroli outlines his reasoning in the judgement posted yesterday. On the document disclosure point, he explains: “The defendants contend that that the claimants’ pre-action steps fell far short of the requirement to disclose ‘key documents relevant to the issues in dispute’. They contend that the claimants should have disclosed voice memos or other ambient recordings of the writing session on 12 Oct 2016, project files and, to the extent that any such ‘key documents’ were missing, they should have provided an explanation of how ‘Shape’ came to be written”.

But, he goes on, “I do not accept that there was any obligation on the claimants to go this far, which would have necessitated making the kind of searches required in a full disclosure exercise. The defendants themselves, who were positively asserting infringement, had given no disclosure at all in support of their assertion (which was a critical element of their claim) that the claimants had had access to ‘Oh Why'”.

Having concluded that the Chokri side should cover the Sheeran side’s costs, there is then a discussion in Zacaroli’s judgement as to what those costs should be, and some accompanying maths with a few deductions being made along the way. At the end of that, the judge orders Chokri to make an “interim payment” of £916,200.