Ed Sheeran’s Copyright Lawsuit Comments Avoid the Realities of Non A-list Musicians

This week English singer/songwriter Ed Sheeran was vindicated in court. A judge determined that his 2017 smash hit “Shape of You” had not been copied, consciously or subconsciously, from grime artist Sami Switch’s 2015 song “Oh Why.”

Afterward, Sheeran released a video in which he argued that the suit was part of “a culture where a claim is made with the idea that a settlement will be cheaper than taking it to court, even if there's no base for the claim,” and worried that this mindset was damaging the songwriting industry. He also said that similarities between pop songs were inevitable. “There's only so many notes and very few chords used in pop music. Coincidence is bound to happen if 60,000 songs are being released every day on Spotify. That's 22 million songs a year and there's only 12 notes that are available.”

Sheeran is correct; pop songs often sound alike. But he doesn’t really acknowledge why that fact leads to lawsuits. The reason isn’t (just) a culture of litigiousness. It’s a culture of massive inequity in the arts, in which some people win everything and some get nothing.

Neither “Shape of You” nor “Oh Why” break any pop taboos. The first bops along on a pleasant rhythmic strummed hook and autotuned sung/rapped vocals. The second has a slower tempo, but a similar melody. It’s not hard to imagine them sharing a curated playlist with other pleasant, catchy, middle-of-the-road pop products.

There’s nothing wrong with pleasant, catchy, middle-of-the-road pop product; “Shape of You” and “Oh Why” are both decent songs. One of those songs, though, is just another song, bobbing about the streaming platforms, largely unmonetized and largely unloved. The other was the biggest song of 2017, and one of the biggest singles of the streaming era. “Shape of You” hit 3 billion streams on Spotify in 2021 and has netted Sheeran and his co-writers somewhere around $30 million altogether since it was released.

Sheeran openly and honestly acknowledges that pop songs just aren’t that different from one another.  Yet, somehow, the “Shape of You” is worth $30 million, while “Oh Why” is essentially worth nothing. It had so little commercial impact that Sami Switch doesn’t even have a Wikipedia page. Even if you think “Shape of You” is a better song, it’s hard to make the argument that it’s that much better.

But this is how the industry works. The vast majority of musicians throw their music onto the streaming platforms for fractions of a penny per stream, and receive neither attention nor remuneration. Meanwhile, a small minority of performers, using the same chords and the same aesthetic, with nothing, in particular, to distinguish them, get public attention, label help, marketing budgets, and plum spots on radio and streaming playlists.

This dynamic is obviously unjust. Why should Sheeran become a multi-millionaire while Switch—no less talented, no less driven, no less original—gets nothing? Switch looked at Sheeran, and said, “I am doing this same thing. Why shouldn’t I get the same results?” It’s a reasonable question. And lawyers were there to turn that reasonable question into an unreasonable lawsuit.

Part of the issue here is simply the nature of art and popularity. Economist Alan Krueger found that people are more likely to like a song if they think other people also like it. Art isn’t just an isolated aesthetic experience; it’s a community. If you love a song, you want to talk about it with other people and listen to it with other people.

“Shape of You” offers a group experience precisely because it’s popular. “Oh Why” can’t match that—which means that even more people listen to “Shape of You,” and even more people like it because they can listen to it with even more people, and so on. Everyone loves a pop song because everyone loves the pop song which leads even more people to love the pop song. The whole purpose of a pop song for its listeners is that it conquers the world.

Some songs and some musicians are going to be more successful than others. But the music industry, and the culture at large, does all it can to exacerbate those inequities. Streaming services tilt payouts towards the biggest artists, and financial data is deliberately opaque, making it hard for mid-tier or smaller artists to even figure out what they’re owed or whether they’re being fairly compensated.

The social safety net in the UK is somewhat more robust than the one in the US—working musicians in Britain don’t need to worry that a medical bill will bankrupt them at least. But pursuing your passion is still a quick trip not just to public indifference, but to poverty for many. Artists can be wealthy and famous or they can be struggling. There’s not much infrastructure or public interest in creating a space for a musician to put in an honest day’s work on a track like “Oh Why” and get a decent day’s pay in return.

In pleading for people not to keep suing him, Sheeran said in his video, “I'm not an entity. I'm not a corporation. I'm a human being, I'm a father, I'm a husband, I'm a son.” He’s also, though, a very rich man. Getting tied up in court on frivolous grounds is miserable. So is being a musician in a culture that values a handful of superstars and tells most other creators that their work is worthless.

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This post was produced and syndicated by Wealth of Geeks.

Featured Image Credit: Asylum Records and Atlantic Records.


Noah Berlatsky is a freelance writer based in Chicago. His book, Wonder Woman: Bondage and Feminism in the Marston/Peter Comics was published by Rutgers University Press. He thinks the Adam West Batman is the best Batman, darn it.