Andrew Masson is an IPilogue Writer and 2L JD candidate at Osgoode Hall Law School.

Was a $46.3 billion piracy problem accelerated by the ad campaigns that attempted to stop it? Gilles Grolleau and Luc Meunier believe this could be the in their article published on July 7, 2022. ÌęToday, anti-piracy commercials might be a , ÌęÌębut Grolleau & Meunier attempted to critically analyze why the ad (and similar ones) may not work. The article does not provide empirical evidence but rather offers insights and reasons as to why commercials may not have effectively deterrent piracy.

The authors based their arguments on with the current anti-piracy ads:

1. The ads over-emphasize piracy’s prevalence.

When an ad stresses how widespread a problem is, it risks people seeing piracy as a social norm. This in turn limits societal pressure to change behaviour. This same trend has been shown in similar commercials about drug/alcohol abuse, suicide, and pollution.

2. The ads should not emphasize the high number of victims.

If everyone is a victim, then no one is a victim. Well-identified individual victims are more likely to gain sympathy than a general group.

3. The ads should not use a shotgun approach to arguments.

is the use of a few strong arguments would more effectively curb piracy than a mix of strong and weak arguments. Although people may think that adding more arguments will improve the total package, the opposite is true if the arguments are not strong. If one strong anchor argument is diluted with moderate add-ons, people perceive the total package as less than the anchor argument alone.

The authors provide some strong points and applied established theories from other fields to piracy, they overlook some factors that may important to the argument. One fundamental difference between piracy and traditional forms of stealing (carjacking, purse stealing, etc.) is that the owner is not deprived of their property in the traditional sense. They incur a loss of profits from the reproduction of that product. This factor may also explain why piracy is not easily deterred through traditional methods of arguing and advertising. Overall, this article highlights the problems that digital media and ownership will keep producing in the legal system and the difficulties that arise when applying traditional legal concepts in modern society.

The post The Era of Digital Pirates and Why Anti-Piracy Ads Have Failed to Make a Difference appeared first on IPOsgoode.

Andrew Masson is an IPilogue Writer and 2L JD candidateÌęat Osgoode Hall Law School.

DMCA (Digital Millennium Copyright Act) strikes and disputes are often thought about in the context of music and video, however, it can be for any copyrightable content. , an entire blog website of a crypto critic was consequently removed due to multiple DMCA strikes. However, these were fraudulent claims that utilized a back-dating technique to fake plagiarism.

Image Source:

Mike Burgersburg published multiple articles critical of cryptos on his blog hosted on . Then, a company called UNFT News copied those articles and published them on their website but post-dated them. So, it appeared that Bursgerburg had plagiarised their work. UNFT News then issued multiple DMCA claims against Bursgerburg using DMCA.com. Given it did this for multiple articles he was subject to Substack’s and missed the deadline to refute the claims. Therefore, he temporarily lost his blog by July 15, 2022. The blog was later reinstated and Burgersburg was able to respond to the claims . Yet the situation highlights the major flaws in the DMCA system.

DMCA perjury

The issue with the current format of DMCA is that it acts as a shield for larger hosting sites and a sword from any person regardless of the validity of their claim. Although submitting a false DMCA claim leaves someone open to perjury, it seems to rarely be enforced. Currently, there is mass abuse of the DMCA system.

is a project launched by the Berkman Klein Center for Internet & Society at Harvard University that was specifically designed to examine this problem. , they looked at DMCA notices provided to Google for articles and found that June 2019 and January 2022 there were 33,988 deliberate fraudulent attempts to misuse DMCA. 99.2% of these fraudulent attempts were unsuccessful, but there were still 300 successful fraudulent takedowns. Although Google's system is very good at identifying these fraudulent DMCA notices, just by the sheer number of attempts they have an impact on free speech on the internet. Additionally, there was no mention of any repercussions for the 99.2% of fraudulent DMCA notices.

Why DMCA abuse may have become more prevalent

It appears there are two motivations and scales of fraudulent DMCA claims. 1) Groups acting as large-scale . Lumen found that almost all the fraudulent DMCA notices examined were sent for articles relating to criminal allegations against . 2) DMCA claims were a small-scale targeted attack on a specific blog, like Burgersburg’s blog.

For the latter claims, there may be ignorance about the consequences and the perceived minimal risk due to the lack of enforcement that has stimulated that form of abuse in the system. However, there is probably more that can be said about the impact of perceived online anonymity and the remote nature of the internet that leads to people perjuring through false DMCA strikes. Currently, ÌęDMCA’s penalties of damages and lawyers’ fees do not seem to be a strong deterrent to fraudulent claims. Many people are like Burgersburg, they get these DMCA strikes and fight to get their content back up. But those that commit perjury through the DMCA notice rarely face any consequences.

The post Weaponizing DMCA’s: How Copyright Systems are Being Abused to Restrict Speech appeared first on IPOsgoode.

Andrew Masson is an IPilogue writer and a 2L JD candidateÌęat Osgoode Hall Law School.

In 2019, artist Maurizio Cattelan went viral for for a piece known as The Comedian at the Basel Miami Beach art fair. It garnered international headlines and Cattelan profited over $390,000 from the sale of pieces based on The Comedian. However, he was not the first to tape a banana to the wall and call it art. Almost 20 years earlier, Joe Morford registered a very similar work of art, "Banana & Orange", with the California copyright office. Banana & Orange [figure below] is two composed of a plastic banana and an orange duct taped to a wall.

Photo from court documents. The left shows the copyrighted works “Blood & Orange” by Joe Morford. On the right is Maurizio Cattelan’s “The Comedian”.

The Case

Given the similarities, Morford filed a civil action against Cattelan alleging that The Comedian infringed on his copyright and claims damages of $390,000. Cattelan’s lawyers filed a motion to dismiss the case, but on July 6^th . It is important to note that this was not a statement on the likelihood of success of the claim. Judge Scola was cautious in his analysis stating that “questions of substantial similarity are typically best left to the trier of fact.” This means the standard to approve a motion to dismiss in this type of case is very high.

Components of a Copyright Claim?

Against the challenge of Cattelan’s lawyers, the judge found that Morford was able to show to some degree that 1) he had a valid copyright and 2) there could be copying.

The case was somewhat complicated by the fact that Morford was self-represented. The judgement mentioned multiple times that Morford did not follow rules or state legal principles. One example of this is Morford stating that he “does not assert copyright claim to the idea of a banana duct-taped to a wall.” The defendants jumped on this and argued that by Morford’s statements, he could not claim copyright. However, Judge Scola appropriately granted leniency and accordingly, found that ÌęMorford was correct in that he cannot claim copyright for the idea of a banana taped to a wall; it is the expression of that idea that he is claiming copyright over.

Cattelan also argued that it was not a valid copyright because copyright only extends to arrangements that are unique and original. Nonetheless, Judges are not art critics and the bar for originality is justifiably low. Judge Scola expressed that “[w]hile using silver duct tape to affix a banana to a wall may not espouse the highest degree of creativity, its absurd and farcical nature meets the “minimal degree of creativity” needed to qualify as original.”

For the claim that it was copied two elements must be present, 1) access and 2) substantial similarity. Regarding access Morford provided evidence that Blood & Orange has been available on multiple different online platforms since at least 2008 and has been accessed in multiple countries. For the substantial similarity, there is a test for three elements: 1) abstraction, 2) filtration, and 3) comparison. The court found that Ìę

“Morford sufficiently alleges that there is similarity in the (few) protected elements of Banana & Orange. In both works, a single piece of silver duct tape runs upward from left to right at an angle, affixing a centered yellow banana, angled downward left to right, against a wall. In both works, the banana and the duct tape intersect at roughly the midpoints of each, although the duct tape is less centered on the banana in Morford's work than in Comedian.”

Conclusion

This was the appropriate decision on a motion to dismiss as Morford’s claim is not entirely meritless. If this moves to trial, Cattelan’s lawyers will likely have more luck arguing on the merger doctrine: that this expression should not be protected because there are so few ways to tape a banana to a wall that protection of expression accords protection to the idea itself.Ìę

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The post Copyright Gone Bananas: Morford v Cattelan appeared first on IPOsgoode.

Andrew Masson is an IPilogue Writer and 2L JD candidate at Osgoode Hall Law School.

F1 racing has become incredibly popular lately, likely aided by Netflix’s “.” IP, design, development, and engineering are cornerstones of this sport, with teams having to design, build, and race their cars. However, the sport is not governed by the IP laws, and using patented car technology is prohibited in ”. This means that F1 must regulate itself and balance the avoidance of a monopoly on certain car designs by allowing teams to against allowing teams to outright copy or steal rival team designs. F1 is unique in having 2 championships per season, with each team having 2 drivers. One championship is for the driver that scores the most points in that season and the second championship is for the team that scores the most points —“constructors championship.” Last year, Red Bull driver Max Verstappen won the drivers’ championship, but Mercedes won the constructors championship earning their team a $50 million bonus.

IP Regulation

With large sums of prize money at stake and teams’ inability to patent the designs on which they , F1 is in a difficult position. The events that unfolded in the 2020 season precisely exemplify the importance of imposing sport-friendly IP regulation that aligns with what is legally accepted. In 2020, . Legally, this seems like an appropriate action, but this contravened the F1 regulation body FIA(International Automobile Federation)’s rules that require teams to design certain “Listed Parts” for their cars. Racing Point was deducted .

New Name, Same Concerns?

In 2021, Racing Point was when Canadian Billionaire Lawrence Stroll (father of Aston Martin racer Lance Stroll) purchased a 16.7% stake in Aston Martin. With the name change, Racing Point also replaced their iconic pink cars with a new set of green Aston Martin cars. At this season's Spanish Grand Prix, Aston Martin upgraded their car to . The designs were so similar that commentators, fans, and teams now refer to it as the “green Red Bull” (article with ). However, the FIA was in its investigation of illegal transfers of IP from Red Bull to Aston Martin.

Interestingly, at the end of last season. Red Bull’s team principal (similar to a manager or coach) Christian Horner was concerned because “, it’s what we invest millions of pounds into and you wouldn’t want to see that just turning up in a rival organization.” However, he also stated that he understands this is part of the sport and individuals change teams and “[w]hat individuals take in their head, that’s fair game and is their knowledge.”

Conclusion

Confusingly, Aston Martin would have had to be developing two entirely different cars at the same time because the changes they introduced in Spain would require to the first car they deployed this season. ÌęAlthough it’s suspicious that Aston Martin invested in the development of two cars simultaneously and one is “identical” to the Red Bull, this could have been done legally. The individuals that transferred late in development from Red Bull to Aston Martin would be well informed on Red Bull’s proposed car design for this season and F1 rules are intentionally limiting IP protection. The FIA not punishing Aston Martin Ìęcould be seen as beneficial for the sport as it creates a more competitive field with exciting races. However, this may prompt the teams and F1 to work out a better way to protect and commercialize intellectual property.

The post IP Policy in Sports: F1 Racing Team Aston Martin Accused of Stealing Red Bull’s Car Design appeared first on IPOsgoode.

Andrew Masson is an IPilogue Writer and 2L JD candidateÌęat Osgoode Hall Law School.

I recently had the pleasure of interviewing , an experienced lawyer, litigator, self-described “Serial Entrepreneur”, and Founder and CEO of . In her career, Heather-Anne has tackled very diverse roles, including as a successful international tax law litigator. She has also succeeded outside of traditional legal practice. She established a consulting firm in Jersey on the Channel Islands and is now CEO and Founder of a financial services platform (Phundex) operating out of the United Kingdom. She provided great advice both for lawyers that want to practice outside of traditional law firms and for entrepreneurs at all stages. Heather-Anne is an inspirational person, one who encourages you to make the most out of life. Her advice and stories would make you believe that you can accomplish anything.

Heather-Anne spoke of taking risks and not being afraid to face new challenges from a place of experience. She did not start her professional career as a lawyer. She worked for several years before attending Osgoode Hall Law School, where she got her LL.M. in tax at night while continuing to work. She then went on to practice in tax litigation, start a consulting company, and eventually faced her biggest risk and stopped practicing law to focus on Phundex full-time. She said the day she decided to stop practicing law was tough, but she knew the skills she had learned as a lawyer would stay with her for life. This strategic way of thinking allowed her to branch out and explore other interests and take advantage of new opportunities as they arose. She transitioned from one job to another without trouble.ÌęÌę

Many may advise against a major life change like starting your own company after working for Ìę3 decades as a lawyer. However, Heather-Anne has a unique perspective; she was simply motivated when “an opportunity presented itself that was really interesting!” Through her experience, she recognized that a lot of her work could be simplified and accomplished on a single platform – Phundex.

To protect users’ information, the Phundex platform allows an administrator to control user permissions from the same or different companies to collaborate on the same accounts and documents without compromising other private information. Developing Phundex was an iterative process and there were many steps and failures before reaching the final product. Heather-Anne believed this is an important part of the process and follows the motto of “fail early and fail often” about being an entrepreneur. For example, Phundex spent six months in development to ensure the platform was secure and encountered both failures and corrections to develop a final product having the functionality she envisioned. As a lawyer, Heather-Anne had the experience to understand what was required of her platform in terms of privacy laws. But she kept learning and still sought outside expertise with different parts of this process as needed. As an entrepreneur and lawyer, she stressed that you do not need to know and do everything yourself. It is important to seek help and utilize all resources available to you. For example, through Osgoode, entrepreneurs can use the to get legal IP advice. Additionally, for both lawyers and entrepreneurs, she stressed the importance of building a diverse network of people with different expertise and reaching out to them for advice. Legal work and lawyers tend to be insular, but experts across different areas add value to your network. From a strategic perspective, she encourages everyone to not simply network but to surround themselves with good people who give good advice.

In addition to her practical advice about being a lawyer and an entrepreneur, Heather-Anne also emphasized the importance of being a good person. With her companies and when looking for jobs, she suggests that you should determine what they offer in addition to money, notably in the context of fostering diverse and welcoming spaces. For example, after a co-worker informed her that they found the terms “whitelist”, “masters list”, and “blacklist” derogatory, Heather-Anne banned those terms from being used within her company. Additionally, during Ramadan, she changed her team’s eating habits to be conscious of others' fasting. Heather-Anne believes that these changes Ìęare “little things, but really important to other people”. Heather-Anne provided some excellent life advice: build a network, ask about opportunities that intrigue you, empathize with others, and fail early and often. For anyone feeling unsure about their future, Heather-Anne’s story shows that you can take chances on opportunities you find interesting.

On behalf of the IPilogue Team, I am especially grateful to Heather-Anne Hubbell for her time. I would also like to thank 91ŃÇɫ’s Provost, Lisa Phillips, and the Provost’s Office for introducing us to Heather-Anne and helping us arrange this interview.

The post Pursuing Your Passions with Heather-Anne Hubbell appeared first on IPOsgoode.

Andrew Masson is an IPilogue Writer and 2L JD candidateÌęat Osgoode Hall Law School.Ìę

I have not explored the comedy-horror genre much, but Director Rhys Waterfield's vision of a has intrigued me from a legal perspective. The IPilogue previously published about when Ryan Reynolds created a fun featuring the iconic original 1926 Winnie the Pooh. Ryan Reynolds's fun-loving commercial was generally well-received by the public, but some claimed that this would “”. Ìę

Purpose of Public Domain

Some may view this as the “darker” side of works entering the public domain, but the public domain is meant to be a wellspring for future creativity. Therefore, although some may find it distasteful, it does fit within the overall purpose of works entering the public domain. The Supreme Court of the United States held in that copyrights are meant to be a “special reward” and that the “products of [creators] genius” would be made public after a “limited period of exclusive control.” The “limited periods” of copyright — now 70 years in Canada and 70 or 95 years in the US — is significant because most copyrighted materials loses its value at that point, and is rather at risk of being lost.

If copyrights were temporarily unlimited, then there may be a risk of material being physically lost because there is no way for it to be legally replicated. ÌęAlthough advancements in digital storage and technology in the last few decades have minimized these concerns, a lot of materials in the 20^th century were analog. This means that if the physical works were lost, damaged, or destroyed, those cultural artifacts would no longer exist. Additionally, has shown that works that entered the public domain compared to copyrighted best sellers of that time were significantly more likely to be in print, with more editions available, and cheaper in costs. Since most copyrighted work is not as popular as Winnie the Pooh, they do require 95-year copyright — the public domain acts as a resource to persevere the work as well as provide inspiration for creative uses of that work.

Is Winnie the Pooh: Blood and Honey Violating Disney’s Copyright?

Although policy reasons justify this film’s release, there is one significant distinction between the Ryan Reynolds interpretation and Director Waterfield’s. Disney owns the copyright to the post-1926, red-shirt wearing Winnie the Pooh, rather than the original shirtless Winnie the Pooh which entered the public domain. The still-shots, however, depict Winnie with a red plaid shirt. Disney has an alternative argument in that the film infringes on their copyrighted version. It is intriguing that the original Mickey Mouse is set to enter the public so Winnie the Pooh: Blood and Honey could be a litmus test for how Disney will approach these copyright and public domain conflicts .

The post Copyright and Public Domain Issues with Winnie the Pooh: Blood and Honey appeared first on IPOsgoode.

Andrew Masson is an IPilogue Writer and 2L JD candidateÌęat Osgoode Hall Law School.Ìę

A business’ success is strongly tied to the ability to protect Intellectual Property. However, the USA appears to use patent protections as a sword to attack and acquire large market shares, instead of as a shield to protect from other companies’ encroachment on another’s IP. This position is demonstrated by the , which suggests that the primary use of patents is protection of the market share and not innovation.

The patent office’s enforcement and issuance process greatly impacts the number of competitors that can enter a market. The patent office has therefore become a fundamental part of the economy, as patent protection plays an important part of many businesses’ strategies. Priti Krishtel, Attorney and Co-Founder of the , states that . This naturally leads to questions about the role patents should play in society, especially in the USA, where the enforcement and granting of patents has been seen .

Purpose of Patents

The ‘sword and shield’ metaphor likely oversimplifies the patent process. The data suggests that in practice, patents are not used for innovation. . Thus, many Ìęincorrectly view the patents primary function as protecting or fostering innovation. Patents Ìęare instead being used to .

Some believe that using patents as a sword abuses their purpose and others support the protection of businesses it provides. It may be a subjective question if patents should serve this role in business, but this use may have gone too far. Practically speaking, the , and if successful – these issued patents will limit competition and can permit industry monopolies.

How the System Can Be Exploited

It is important to dissect society’s perspectives on the role of patents. For example, one way to “game” or exploit the USA patent system and . “New” medical devices can obtain faster regulatory approval by showing regulators that a product is like an existing product warranting approval. At the same time, the companies will also submit to the patent office that it is novel enough to require a new patent. This process has allowed medical devices to Ìęis granted through incremental changes.

Conclusions

The problems highlighted are of much greater concern currently in the USA but do not exclusively occur there. The actual rules and laws appear similar to those in Canada but in the USA, the to benefit businesses or large corporations. This perspective initially could have been useful in protecting companies and establishing markets but can result in monopolies and stifle small companies’ innovation. The patent office may need to reform in some way because they have allowed patent “swords” to become common practice. The US Ìępatent system should ensure patents are not morphed into solely a tool to control market shares. Unfortunately, wielding patents as swords can harm innovation and to solve the problem, the patent office should consider their ability to dull the edge of the patent sword.

The post The Role of Patents: A Competition Sword or Shield appeared first on IPOsgoode.

Andrew Masson is an IPilogue Writer and 2L JD candidateÌęat Osgoode Hall Law School.Ìę

One of the biggest names in golf that is not Tiger Woods, for breach of a $145 million deal for the exclusive use what is being Nicklaus, also known as The Golden Bear, is 82 years old and widely regarded as one of the greatest golfers of all time. During his career he won 117 professional tournaments and 18 major championships, which is 3 more than Tiger Woods. Retired Nicklaus now heads his golf course design and construction company, . Nicklaus is one of the most prominent names in golf, so this recent filing has garnered the attention of sports reporters.

On May 17, the reported court filings involving Nicklaus involved both IP use and NIL issues. In May 2007, before the concept of name, image, and likeness became ruling for college athletes, Nicklaus appears to have made a similar deal except it was for . This involved three parties: 1) Jack Nicklaus; 2) GBI Investors Inc.; and 3) Nicklaus Companies L.L.C. Nicklaus incorporated GBI Nicklaus in 1984 and he remained manager when the deal was made in 2007. This deal involved selling business and assets of GBI that related to Jack Nicklaus to Nicklaus Companies. The IP rights and activities related to both Nicklaus as a person and his golf course design and construction activities made the deal worth more than

Nicklaus Companies claims they have paid and continue to pay both Nicklaus and GBI who are not meeting their obligations. Niklaus Companies seems to have put forth for which they are seeking injunctions and damages: 1) Jack Nicklaus continues to make deals regarding his IP and excluding Nicklaus companies from them; 2) these actions are damaging to Nicklaus Companies; and 3) Jack Nicklaus has threatened to continue to do these activities by unilaterally reclaiming ownership of those rights he sold. At first, the deal appeared to transfer the numerous patents and trademarks from GBI to Nicklaus Companies, but in recent years Jack Nicklaus and GBI have not satisfied the deal. Jack Nicklaus has deals regarding his golf course designed in addition to entering a deal to profit of his NIL that excluded the company.

Notably, this story broke within days of Jack Nicklaus turning down to be the face of a new golf series. Though not directly related to this case, his decision may be relevant to broader branding issues associated with his name.

This interesting case will likely become a battle over the terms of the contract with strong arguments on both sides. From an equitable perspective, it appears Nicklaus entered an unfavourable deal in 2007 that meant in the long term he was . This term mirrors the contracts of most universities (like) where professors are not the exclusive IP owners for independent work completed during employment. These contracts can be contentious if they give off the impression that those with money can exploit resource-strapped inventors. On the other hand, the Jack Nicklaus company paid a substantial sum of money on the belief that they would retain the Jack Nicklaus IP into the future. Under the principle of of contract, the Nicklaus Company does not appear to have violated the terms of the agreement and they just want to receive what they have paid for and did not force Nicklaus and GBI to enter the contract. As this was just filed, it will likely be some time before a decision or settlement is reached. But if it gets to trial, there will likely be interesting arguments on the contracting of IP.

Ìę

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The post Why the Golden Bear is Actually Going to Court: Nicklaus Company v Jack Nicklaus appeared first on IPOsgoode.

Andrew Masson is an IPilogue Writer and 2L JD candidateÌęat Osgoode Hall Law School.

The meat may be fake, but the beef is real between The juggernaut artificial meat producer Impossible Foods is suing the start-up Motif FoodWorks for . Impossible Foods claims that the heme technology used by Motif too closely imitates their artificial meat technologies. This case may be significant for the future of alternative meats as it can determine the boundaries of Impossible Food's patent monopoly on the process of producing alternative meats.

Meat Alternatives

In recent years, there has been more demand and an expansion of food options for vegetarians, vegans, and those looking to reduce their meat consumption. Concerns about sustainability and the environment have driven many people to switch to meat alternatives in order to reduce their carbon footprints. Although the cause may be altruistic, it has also been a very profitable enterprise. Impossible Foods is valued and as a startup, Motif is valued from investors such as Bill Gates. Consequently, there is a lot of money to be made in this developing market and Impossible Foods will want to strategically limit its competition.

The Case

Impossible Foods uses a in their beef and pork substitutes, which is produced from genetically modified yeast, whereas Motif in the production of its heme. However, Impossible Foods claims that the use of heme is an on their intellectual property. Impossible Foods believes that its patent protects against the invention of any beef substitute that uses a muscle replica including the heme-containing protein. Impossible Foods claim that their patent generally covers heme meat replicate composed of at least one sugar and one sulfur compound or a fat tissue replica that uses at least one plant oil and a denatured plant protein. Motif’s is that they have not violated the patent agreements and Impossible Foods is acting to stifle competition. It seems to be a disagreement over the extent to which the patent protects processes versus ingredients.

If Impossible Foods can establish strong patent protection of the general process and earn a level of protection Ìęsimilar to that of , Impossible Foods can limit the ability of competitors to enter the space. In the pharmaceutical sector, wide patent protections have allowed companies to dominate market share and establish monopolies. These monopolies can , as they have in the USA, due to a lack of competition, demonstrating the possible problems with broad patents . Alternative meats are less likely to create the same issue because there is direct competition with ‘real’ meats and other vegetarian options for alternative meat. Therefore, whether or not Impossible Foods succeeds in this infringement suit, the outcome is unlikely to greatly impact the consumer. However, it could drastically impact Impossible Food's ability to maintain a significant market share in the artificial meat industry.

The post Where’s the Beef: Patent Battle Over Artificial Meats appeared first on IPOsgoode.

Photo by Gabriel Gurrola ()

Andrew Masson is an IPilogue writer and 1L JD candidateÌęat Osgoode Hall Law School.

After a four-year battle, Ed Sheeran has finally received vindication for copyright claims against his hit song “Shape of You”. It would be impossible to review all components of the in this blog but, most importantly, Ed Sheeran’s artistic integrity was verified. One of the most salacious claims was that Ed Sheeran is a ‘Magpie’, defined as someone that habitually and deliberately copies and conceals the work of other songwriters. The case started with one portion of “Shape of You” accused of plagiarism. However, the accusing party referenced five other portions of songs (i.e., Photograph, Shape/No Scrubs, Strip That Down/It Wasn’t Me, Lift Me Up/Lay Lady Lay, and Take It Back) to show Ed Sheeran habitually “steals” from other artists. The judge ultimately did not find validity in any of these additional claims.

The crux of this case is about musical copyright. The case was started by Ed Sheeran’s party, although they were the ones accused of copying. They initiated it because the accusing party Chokri notified the Performing Rights Society Limited (“PRS”) that they should be credited as songwriters of Sheeran’s “Shape of You”. As a result, the PRS suspended all payments to the claimants in respect to public performance and broadcast of “Shape of You”. Chokri claimed that a portion of “Shape of You” that goes “Oh I, Oh I, Oh I, Oh I” was plagiarised from a portion of their song “Oh Why” which goes, “Oh why, Oh why, Oh why, Oh” in a very similar sound (excerpts from each song are included below). The full decision includes a great breakdown of music copyright, but the main takeaway is that the two sections are similar. However, there is nothing original in the phrases being used and the evidence provided on how the phrase “Oh I” evolved during recording suggests that the source for it was not “Oh Why”. Additionally, it was found that the notes and “sound” used were too common of a progression in music and pop to be considered original and copied. Ìę

Photo from the

Just hearing the two portions of each song, they are very similar and I understand why Chokri felt he was plagiarised. However, given that Chokri’s song was only played on the radio twice, played live in small venues twice, and only had 12,914 views on YouTube, it is unlikely that Ed Sheeran ever heard the song. Absent any evidence that the parties associated with each other, it seems unlikely Ed Sheeran ever heard it prior to creating “Shape of You”. Although I empathize with Chokri about the appearance of plagiarism, it seems unlikely that Ed Sheeran would have heard his song prior to writing his own.

In my opinion, Chokri’s case fell apart at three places: 1) the alleged copied portion was not similar nor original enough for the two parties to not have independently came to those sounds, 2) the five additional claims that Ed Sheeran was a Magpie lacked merit, and 3) there was no evidence that Ed Sheeran ever heard the original song. I think Chokri made a strategical error in including the additional cases because, of the five, two were instances where Ed Sheeran reached out to other artists to seek permission and in one, “Take it Back”, the lawyer misinterpreted its meaning. So, in the end, those cases worked in Ed Sheeran’s favour to show he actively tries to address potential plagiarism and has a history of properly attributing other artists.

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