How is copyright infringement determined, who decides if a song is plagiarised and what happens to the royalties if a claim’s upheld?

MUSICIAN Ed Sheeran has started legal action after he was blocked from receiving royalties from his song Shape of You after claims it was a copy of a 2015 song Oh Why.

The law in the UK is governed by the Copyright, Designs and Patents Act 1988. Here’s the lowdown on how copyright works.

How is copyright infringement determined?

Copyright law gives creators of work exclusive rights to reproduce and sell their work, if those are infringed then the creator can take legal action to get financial compensation.

The work has to be “substantially similar in design, structure or content.”

There are three main areas where damages can be awarded:

Actual damages – the monetary value of the loss to the copyright owner such as sales, licensing revenue or any loss directly attributable to the infringement.

Profits – any money made by the infringer. These damages are awarded only if they exceed the amount of profit lost by the copyright owner.

Statutory damages – as the both two are often hard to prove in court there are statutory damages – damages set by law. But only someone who has registered a work with the UK Copyright Service before the infringement is eligible for these damages.

Who decides if a song is plagiarised?

Copyrighted elements of a musical composition can include melody, chord progression, rhythm, and lyrics.

Copyright doesn't protect ideas, but rather creative expressions of ideas.

But with music there can be a fine line between influence and copying.

In the normal course of action it is usual to simply request with withdrawal of any infringing work, putting forward any reasons, stating a reasonable settlement and a time scale for this to be achieved.

But cases are solved this way as litigation is expensive and the outcome not always clear cut for either side.

If the dispute cannot be settled this way then legal action may be necessary.

In legal terms, copyright infringement comes under “strict liability tort” law which means the defendant doesn’t have to have intended to infringe to be found guilty.

The plaintiff must only demonstrate that the defendant had access to the alleged infringed song - ie knew of or heard the original song - and the two songs have “substantial similarity”.

This latter one is complicated as this often boils down to the “ordinary observer test”.

Essentially, the more elements the two works have in common the more likely they are to be ruled substantially similar.
This is judged over two areas of copyright – composition and sound recording which are evaluated independently.

What happens to the royalties if a claim’s upheld?

In the current case where Ed Sheeran is taking action against Sam Chokri over claims the No 1 hit single Shape of You is a copy of Chokri’s 2015 hit Oh Why, royalties have been put “into suspense”.

The Performing Rights Society (PRS) has suspended paying any royalties to Sheeran since May 10 as the case is being decided.

Sheeran has launched a legal bid to claw back the cash, which could run into millions.

In the case of the PRS in the UK, if a claimant provides enough evidence to warrant further investigation then it will suspend royalties until the dispute is resolved.

Once the dispute has been resolved, possibly by court action, then the royalties are released.