Zacaroli J determined that, contrary to the claims of Sami Chokri (aka Sami Switch), Ed Sheeran hadn’t deliberately or knowingly copied any elements of Sami’s “Oh Why” song in his own “Shape Of You”.

When litigation is the only answer.

While this is obviously great news for Ed, and much less good news for Sami, it does highlight the fact that creating a question for which litigation is the only answer, is highly undesirable for both parties. According to his public posts, Ed Sheeran has found the entire process deeply stressful and anxiety-inducing, and even being determined to be ‘right’ won’t put him back in the position he would have been prior to the litigation. It won’t give him back the hours, days and weeks of worry, stress and upset, and is unlikely to compensate him financially for the full impact of the litigation.

An expensive PR exercise.

For Sami, this has been a disaster. He may be able to view it as a very expensive PR exercise (how many more people are now aware of “Oh Why” as a result? Will they want to buy his music?), but it’s undeniably been a massive drain on his financial and emotional resources. 

What can we learn from this?

What can we take from this in our day to day (assuming we’re not songwriters or musicians)?

• Where possible, check what others have created before launching your own creative efforts. Whether that requires trademark searches, Companies House searches, patent searches or just a bit of Googling (other search engines are available), it’s worth making sure you’re not treading on someone else’s toes before investing in launching something new. 
• Agreeing contentious points in advance, rather than leaving them to be fought about later, is almost always cheaper, less stressful, and easier. In our contract negotiations, it can be tempting to leave ‘woolly’ provisions on the basis that it’s easier to get people to agree to something fluffy than to say what we really mean (which they’d definitely object to). The problem is, this is just ‘kicking the can down the road’ – deferring the fight to tomorrow, when the stakes (and tempers) may be much higher. Better to have a calm and honest conversation up-front, when you’re both feeling kindly disposed to each other, than to leave it for later and risk potential litigation.
• In litigation, nobody wins. Even if you win, you lose.

I recently spoke with a potential new client about helping them with some new Ts&Cs. In preparation for the call, my colleague Wayne McBean had researched their company online, and discovered a competitive business with a very similar name. Although our new client had never received any contact from the (much bigger and more established) competitor, we suggested that as they grow, and potentially become more of a challenge, this would become increasingly likely. 

Receiving a ‘cease and desist’ order, or a trademark infringement claim (the competitor had registered a trade mark that was very similar to our client’s company name) would not only be extremely disruptive, but expensive to fix in a hurry.

As a result, the company has decided to look at a name-change and a rebranding now, while it’s still relatively small, rather than being forced into this when it’s much bigger in a few years time. It’s often much better to absorb a little bit of pain and cost now, than to put it off and end up incurring much more of both in the future!

Do get in touch if you think you might be facing copyright issues of any kind. We’ve been dealing with copyright and IP issues for many years now and would be delighted to help.