Ed Sheeran’s victory on 6th April in his pre-emptive court case against Sami Chokri and Ross O’Donoghue—who had accused Sheeran of plagiarising their song “Oh Why” for the catchy “Oh I” refrain in Sheeran’s massively successful song “Shape of You”—is about more than just money. Sheeran was clearly upset to be accused, and really wanted to clear his name.
It was a reminder that borrowing and self-borrowing in music has long been looked down on. One of the reasons Handel is regarded as a lesser composer than Bach is that he was such a shameless borrower. Yet when it came to light-fingeredness, Bach was no slouch himself. He borrowed from his own instrumental music for the sinfonias in his cantatas, and from numerous other composers, above all Vivaldi.
Nobody seemed to notice, or if they did they weren’t concerned. And they were right because borrowing is the lifeblood of music. If you look at the long history of musical creation down the ages most of it barely reaches the severe contemporary yardstick of originality. It’s simply the endless reshuffling and tweaking of conventional melodic phrases handed down over the millennia. There is no “original” for a folk song, there are only innumerable variants differing from one another sometimes in tiny details, at other times in quite profound ways because it’s been fitted with new words or crossed a cultural border, and so needs words in a new language.
Come forward to the era of music that is written down, and you find that much of music’s content consists of shop-worn items that really should bear the label “Used goods—several previous owners.” Renaissance masses were based on plainchants, which were common property. In the classical era of Haydn and Mozart, the musical language consisted of prefabricated blocks such as melodic “turns of phrase” and cadential and accompaniment patterns, which were endlessly re-combined and finessed to create new pieces.
It was only in the romantic era that originality per se began to be prized. It’s no accident that this new interest in what German romantics called the einfall, the moment of heaven-sent inspiration, arose at roughly the same time as modern copyright law. Now that musical invention was the personal property of each composer, it had to be protected from plagiarism and properly rewarded. The mystique of the “original genius” and the legal protection afforded to his (it was usually his) creation went hand-in-hand, each elevating the other.
The system worked well as long as the production of musical works was at manageable levels. But once the era of mass culture got under way and the sheer numbers of new, copyrightable music works exploded exponentially, the system came under increasing strain. As that gloomy cultural critic Theodor Adorno never tired of pointing out, the products of mass culture are designed to appeal to the maximum number of listeners with the least possible effort on their part. The Tin Pan Alley hit consisted of a small number of formulae, arranged in combinations that were sufficiently similar to the previous week’s hit to seem familiar, and sufficiently different to seem strikingly new.
This was very different to the refashioning of a folk song, which was the slow, patient work of “the tribe” happening unnoticed over years and decades. It was a highly self-conscious process, involving much tweaking of details and fiddling with lyrics to get the product right. For decades now that process has been centred in the recording studio, where the threadbare collection of endlessly repeated riffs and chords is tricked out with ear-tickling aural “production values” to make it seem new.
The irony is striking. A system designed to protect originality now serves to protect cliché—and reward it handsomely. And woe betide anyone whose manipulation of the clichés is too obviously like someone else’s—because then the full weight of the law will be brought against you.
The problem is: how can one tell whether a striking similarity between one very clichéd musical pattern and another is simply a case of unconscious and accidental similarity, or a conscious, deliberate and therefore punishable offence? Given the astonishing fecundity of the music business—Spotify apparently adds 60,000 new tracks every single day—there must be innumerable close calls. But it’s only when someone notices, and when there are serious amounts of money involved in the alleged offence that it reaches the law courts and then the newspapers.
Which brings us back to Ed Sheeran and “Shape of You.” My view is that Chokri and O’Donoghue didn’t have a leg to stand on. Yes, their riff moves from the tonic note to the fifth, just like Sheeran’s, but it moves across the beat rather than on it, and the underlying harmony is very different. Also their song as a whole is in a slower tempo and is swathed in an echoing, dreamy sound-world, very different to Sheeran’s annoying perkiness. Really both riffs should be in the dock for “offences against music” but unfortunately there are no laws against banality.
