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Sheeran vs Sheeran
And the loser is ... someone else
Sometimes we think we can spot a liar because of the way they behave. It’s encouraging to think that everyone displays signs, or “tells”, that might give them away when they are not speaking the truth. But, if that is the case, I’m not very good at spotting it. I do, however, tend to notice when people make conflicting statements which cannot both be true – sometimes days, weeks or even (if it’s important enough) years apart.
The process of comparing and contrasting differing accounts is something that judges often need to do when deciding civil cases. It’s not always easy.
In 1999, three former members of Spandau Ballet sued a fellow band member, Gary Kemp, for a share of the royalties from the band’s songwriting. They lost. In part, their claim depended on an oral agreement between the two sides – something which Kemp denied the existence of. As a civil case, the judge had to decide which side was more likely to be recalling the facts accurately.
But what is the judge to do when, as in the Spandau case, the conflicting evidence is evenly balanced? In law, the burden is on the claimant to establish their case. If the judge cannot conclude that one side’s evidence is more probably correct than the other’s, the claimant loses. The disputed money is not split down the middle.
I was reminded of the Spandau case recently when I saw that the lead barrister on the losing side had not fared much better in the recent claim over royalties to the song Shape of You, Ed Sheeran’s 2017 worldwide digital best-selling song.
Sheeran is an exceptionally successful singer-songwriter. He has yet to write a song that I like, but neither of us need lose any sleep over that. In interviews, Sheeran comes across as a very likeable person. Instinctively, that makes me want to believe that he was telling the truth when he denied that the “Oh I” hook in Shape of You was copied by him from Oh Why, a song by the little-known artist, Sami Switch.
One formulation of the claim against Sheeran was that the copying was deliberate. By pursuing such a case in the face of Sheeran’s denial, Switch was alleging that Sheeran was lying and his counsel had to put that to Sheeran and argue it in front of the court.
Unlike the Spandau case, there was no one with a conflicting recollection of events. The judge was faced with deciding the veracity of Sheeran’s evidence by comparing what he said at one time against what he said at another and testing both against other known facts or inferences. The judge’s thought process makes for a fascinating read but, in places, I found it thoroughly unconvincing.
See what you make of the following examples that I picked out.
To credit, or not to credit, that is the question
It was not disputed that Sheeran has borrowed music from other writers. In several of his songs, he has given a credit to the sources he has drawn on. A question for the court was whether someone who copies and credits is likely, sometimes, to copy without giving a credit – ie to plagiarise. Sami Switch’s lawyers argued that such a person quite probably would do so. The judge thought the opposite:
“… the fact that someone is in the habit of openly recognising and crediting the work of others makes it less likely that they would set out to steal the creative work of others.” [Paragraph 150 of the judgment.]
The judge is depicting someone who is scrupulous about giving credit to other writers. But there is a further possibility: a writer who copies other people’s work and then makes a judgment whether to give credit or not. Whilst the credits he gives will paint a picture of a person of integrity, the credits he does not give will go unnoticed … until someone does notice.
What makes this alternative possibility particularly interesting in the Sheeran case is that the judge devoted the next seven pages of the judgment to examining evidence that Sheeran had done exactly that on other songs – sometimes giving credit and sometimes not. The judge concluded that Sheeran (and his team) had made the correct assessments on each of the other occasions. That certainly speaks well of their acumen, but it completely undermines the judge’s reasoning that Sheeran’s past behaviour makes it less likely that he might have copied without giving a credit.
I remember very well that it didn’t happen
Sheeran and his Shape of You co-writers said that to the best of their knowledge they had not heard of Sami Switch prior to his allegation of copying and they had never heard his song, Oh Why. Counsel for Switch challenged Sheeran with the question: “Obviously, there is no way you can remember every song that you have ever listened to”? Sheeran responded: “I don’t know about that.” He later clarified that he was not saying that he could, but “I am saying there is not no way.”
Switch’s counsel described this as Sheeran feeling “obliged to make [a] concession”, but the judge was having none of it. He said Sheeran was just “stating the obvious” – as if a statement of the obvious could not also be a concession. The judge went on to observe that someone who has deliberately copied another person’s song is likely to remember the song they copied. It followed, he reasoned, that if one is falsely accused of copying, the accused “is more likely to be able to say with confidence that they had not listened to the song”. [Paragraphs 78-81.]
That logic makes no sense to me. If you show me an article on, for example, this case and ask if I have read it, there is a good chance that I won’t recall either way. That is because, although I have read many articles on the subject, my reading represents only a small fraction of all the articles that have been written about it. If you accuse me of deliberately copying one of the articles in the construction of this piece, I can be certain that I didn’t do so because I know that my deliberate copying was only from the judgment (which is allowed!). But your (false) accusation won’t make it any easier for me to remember whether or not I had previously read the article you challenged me about.
The full judgment runs to 43 pages. It is by no means the longest judgment I have ever read, but I am sure that writing it must have been a substantial undertaking, nonetheless. The judge not only had to decide whether there was deliberate copying; he also had to decide whether there was subconscious copying, which he likewise rejected. The decision is very detailed in its exploration of the process by which Shape of You came to be written. It was also very meticulous in discussing the similarities and differences between the song’s hook and the passage from Oh Why that it was alleged to have been copied from. And (as already mentioned) it included a very careful analysis of several other Sheeran songs with similarities – real or alleged – to prior works of others.
I do not want this piece to create the impression that I think the judge came to the wrong conclusion. Or that I think Sheeran was lying. I just don’t think the judge always used the right “tells” to infer that Sheeran was speaking the truth.
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