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Musicologists conclude that Shape Of You rips off Oh Why – or doesn’t – as Ed Sheeran song-theft case proceeds
By Chris Cooke | Published on Friday 18 March 2022
The ongoing song theft dispute in London’s high court over Ed Sheeran’s hit ‘Shape Of You’ got to the musicologist stage this week. Both sides in the dispute had expert musicologists analyse the similarities between Sheeran’s song and Sami Chokri and Ross O’Donoghue’s earlier track ‘Oh Why’. And who’d have thought it possible, but Sheeran’s musicologist reckons the similarities between the two songs are coincidental, while Chokri’s expert says that’s highly unlikely.
Chokri reckons that Sheeran got a copy of his 2015 track ‘Oh Why’ through mutual friends or industry connections, not least because he’d tried very hard to get his song in front of the star. Then, the theory goes, when Sheeran and his songwriting pals got together in late 2016 to write ‘Shape Of You’, Sheeran either consciously or subconsciously utilised a key element of the earlier song within his hit.
But Sheeran and his collaborators deny having ever heard ‘Oh Why’ before writing ‘Shape Of You’. Meanwhile, they argue, the elements that are shared by the two songs are pretty commonplace in pop music, which means it’s not entirely unlikely that two separate songwriters would separately write songs that sound similar in that way.
Song theft disputes of this kind always require the input of at least two musicologists to muse on the extent to which the two songs at the centre of the dispute are the same.
One musicologist will say that they are so similar that the newer track must have copied the older track. The other musicologist will then dispute that point. And then everyone in court has a little ponder about how ‘musicologist’ can even be a real job. Which is to say, this section never seems to achieve much, but is a requirement nonetheless.
Actually, according to the BBC, the Sheeran-appointed expert Anthony Ricigliano and Chokri-hired musicologist Christian Siddell did agree on some things in relation to similar segment of the two songs – which is the “oh why, oh why, oh why, oh” line in ‘Oh Why’ and the “oh I, oh I, oh I, oh I” line in ‘Shape Of You’.
“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”, the two experts conceded in a joint written statement, while both musicologists also confirmed that they hadn’t found “the same combination” of phonetic sounds, pitch and rhythm “in any other compositions”.
However, Ricigliano insists, “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'”. Therefore the similarities were likely “coincidental” and not the “result from copying”.
In court, Chokri’s lawyer Andrew Sutcliffe honed in on the fact Ricigliano hadn’t found any other songs with the same combination of phonetic sounds, adding: “Do you not find this extraordinary?” But no, Ricigliano did not find that extraordinary at all.
After all, he concurred with Sheeran’s argument that the “oh I” melody is a “basic minor pentatonic pattern”, which is pretty common in pop music.
Backing up Sheeran’s point, Ricigliano paraphrased legendary composer Leonard Bernstein, who once said something to the effect of “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”.
But, of course, Siddell argued that the similarities between the key segments of the two songs were “so numerous and striking that the possibility of independent creation is … highly improbable”.
After all, they are “nearly identical in respect of their rhythm and pitch” and “musically indistinguishable to the ear”. To Siddell these similarities seemed “unlikely to be the consequence of coincidence”.
Earlier in the week as the song-theft dispute continued to go through the motions, we also got statements from Chokri’s former management firm Artists & Company which backed up his testimony regarding all the various attempts to get a copy of ‘Oh Why’ into the hands of Sheeran back in 2015.
The management company also confirmed that – once ‘Shape Of You’ was released and Chokri’s team initially approached Sheeran’s team about the similarities between the new track and ‘Oh Why’ – they were basically told to “get lost”, which only made Chokri and his managers feel more cheated.
The case continues.
