Avoiding copyright lawsuits: record-keeping for creatives

Article  \  2 May 2022

The English High Court recently found in favour of musician Ed Sheeran in a copyright infringement case. Fellow English musician Sami Chokri, who performs under the name Sami Switch, had claimed that Sheeran’s 2017 hit song Shape of You copied an element from his own 2015 song, Oh Why. The judge firmly disagreed, finding there to be significant differences between the songs and concluding that Sheeran had not deliberately, or subconsciously, copied Chokri’s work.

The case is not the first of its kind, nor is it likely to be the last. Fellow chart-toppers Katy Perry, Taylor Swift, Dua Lipa, Robin Thicke, and the New Zealand National Party have all found themselves defending copyright infringement claims in recent years. The trend is perhaps not surprising; the amount of damages being sought against more famous musicians can often be in the tens of millions of dollars. Settlement alone might cost a successful artist several million dollars.  

Popstars and mouth-watering settlements aside, the case has resulted in some interesting takeaways outside of the courtroom. Sheeran has now said that he films every one of his writing sessions in an effort to thwart potential copyright claims that are made against him in the future. The filming of writing sessions should provide Sheeran with clear evidence of the exact time he worked on certain versions of songs, which can be critical when dealing with infringement issues. This could prove invaluable to Sheeran, beyond monetary terms, as it ultimately protects his creative freedom and integrity as a songwriter and musician.

“Sheeran has now said that he films every one of his writing sessions in an effort to thwart potential copyright claims that are made against him in the future.”

With ‘New Zealand Music Month’ fast approaching, the case serves as a timely reminder, to creatives and counsel alike, of the importance of prudent record-keeping practices. This is particularly relevant to those who work in industries where the core goods or services provided are of a less tangible nature.   

The music industry is obviously a great example of a field where earlier iterations of work (i.e. music or lyrics) are not always recorded or stored digitally. However, this can extend to numerous industries, especially when they are not fully digital, or do not operate in a field that involves constant saving of electronic copies of work.

While these situations are rare, the difference between excellent record-keeping and poor record-keeping could be the difference between one email pre-emptively shooting down a copyright infringement claim, and fully defended proceedings in court. Saving early versions of creative works – even by simply taking a photograph or sound recording and emailing it to oneself (preferably an encrypted version) – could save major headaches down the road.


Photo credit: British singer Ed Sheeran during his performance in Prague, Czech republic, February 12, 2015. — Photo by yakub88

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