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Musical “magpie” Ed Sheeran is also a “music squirrel”, says lawyer in Shape Of You song-theft case

By | Published on Wednesday 9 March 2022

Ed Sheeran

Ed Sheeran further discussed his creative process in the high court in London yesterday as the song-theft legal battle over his 2017 hit ‘Shape Of You’ continued. He also revealed how his team usually deal with songs he’s written that contain elements in common with old songs – a process that may or may not have been applied to the unreleased Sheeran track that got an unintended airing as yesterday’s court proceedings went through the motions.

Sheeran and his songwriting collaborators are accused of ripping off the earlier track ‘Oh Why’ by Sami Chokri and Ross O’Donoghue when they wrote their 2017 hit. But Sheeran et al deny having ever heard of ‘Oh Why’ before writing ‘Shape Of You’, and counter that the elements shared by the two songs are pretty commonplace in pop music.

The legal rep for Chokri and O’Donoghue – Andrew Sutcliffe – previously called Sheeran a musical “magpie” who routinely nabs bits of existing songs to slot into his new music. Although yesterday Sutcliffe declared that Sheeran was, in fact, a “music squirrel” who is constantly consuming music, squirrelling away the best bits to inform his own creative process.

That followed up from Monday’s discussion of the process Sheeran goes through when writing new songs. The musician admitted that in the early days he built up ideas for his songs over a period of time, but insisted that in more recent years his songwriting has become much more spontaneous.

This made it less likely that Sheeran had heard ‘Oh Why’ in 2015, logged some ideas he nabbed from the track, and then utilised those ideas when writing ‘Shape Of You’ the following year.

But what if music squirrel Sheeran – “voraciously” consuming new music throughout 2015 and 2016 – had found himself nodding along to ‘Oh Why’, then squirrelled away his favourite elements of the track into the musical oak tree in his creative mind, before subconsciously including them in ‘Shape Of You’?

That’s highly unlikely, Sheeran insisted in court yesterday, not least because he basically went off grid in the year before writing ‘Shape Of You’ in autumn 2016, cutting himself off from both social media and all the new music being circulated online at that time.

Elsewhere yesterday, Sheeran discussed in more detail the argument that the elements that ‘Shape Of You’ and ‘Oh Why’ share are commonplace in pop music, an argument that has been key in many of the recent song-theft legal battles.

According to the BBC, when asked if his song and Chokri’s song had very similar melodies, Sheeran said: “Fundamentally, yes. They are based around the minor pentatonic scale [and] they both have vowels in them”. However, he insisted, that wasn’t because he had Chokri’s track in his mind when writing his hit.

To illustrate that that melody is common place in pop music he sang elements of other songs where it can be heard, like ‘Feeling Good’ and Blackstreet track ‘No Diggity’. “If you put them all in the same key, they’ll sound the same”, he added. In fact, Sheeran also admitted, while writing ‘Shape Of You’ he had actually realised that the song was a little too close to ‘No Diggity’.

That’s why, in audio excerpts from the ‘Shape Of You’ recording sessions, Sheeran can be heard suggesting a key part of the song’s melody be changed because it was “a bit close to the bone”. Sheeran told the court: “We thought it was a bit too close to a song called ‘No Diggity’ by Blackstreet. I said that … we should change it”.

And, the musician added, it wasn’t just him who was monitoring whether his new songs were too similar to old songs. He told the court that a musicologist had reviewed the original version of ‘Shape Of You’ and identified similarities with Bill Withers song ‘Grandma’s Hands’ and TLC track ‘No Scrubs’.

Tweaks were made as a result, Sheeran confirmed, while the writers of ‘No Scrubs’ also got writer credits on his hit. That wasn’t actually finalised until after the release of ‘Shape Of You’, of course. But, Sheeran insisted, his people had nevertheless approached the ‘No Scrubs’ writers prior to release, but they had not responded until after.

Throughout all this discussion some musical clips were played in the courtroom. Some of that, it turned out, was coming from the personal laptop of Sheeran collaborator Steve Mac. We know this because at one point a snippet of an unreleased Sheeran track was accidentally played.

“That’s a song I wrote last January. How did you get that?” a frustrated Sheeran asked as that snippet played out in the courtroom.

We await to see which songwriters claim their songs were ripped off in that short snippet. Meanwhile, the ‘Shape Of You’ court case continues.