Ed Sheeran is right about British courts

7 April 2022

9:20 PM

7 April 2022

9:20 PM

As they say in the music business, where there’s a hit, there’s a writ. It is something that no one knows better than Ed Sheeran, who yesterday won a legal battle over claims that his song Shape of You plagiarised an earlier song, Oh Why by Sami Chokri and Ross O’Donoghue. The judge ruled that Sheeran had neither copied the song deliberately nor subconsciously. After his victory, Sheeran said:

Claims like this are way too common now and have become a culture where a claim is made with the idea that a settlement will be cheaper than taking it to court, even if there is no basis for the claim, and it’s really damaging to the songwriting industry.

Sheeran has been accused of plagiarism many times before, and not always by songwriters who stand to gain from proving that he copied from their work. Moreover, on several songs, he has actively credited other songwriters after using phrases from their music. There are plenty of videos on YouTube where you can judge for yourself just how original a songwriter Sheeran is.

Nevertheless, he is surely right when he says that many lawsuits are launched with the objective not of winning arguments in the courtroom but of frightening opponents into submission with the threat of ruinous legal costs. This extends far beyond the music industry. We have seen it over and over again with oligarchs using the courts to massage their reputations, knowing that hardly anyone they sue for libel can bear the legal costs of fighting. Instead, the oligarch’s focus is to draw out a settlement from their frightened opponents before they even have to argue the merits of their case.

That someone as wealthy as Sheeran can be left feeling worn down by a legal battle says a lot. He could afford to fight his plagiarism case and he did. Yet consider how much easier it would have been to hand over a small slice of his riches in the form of royalties and be done with it. When potential legal costs often exceed the cost of any award likely made by the courts, there is little incentive to stay and fight.

There is a simple way to prevent the threat of legal costs being used to batter opponents into submission: allow those dragged into legal battles to set a cap on the costs that they will claim from the other side in the event of their winning the case – the same cap would then be applied to costs which can be claimed from them. In other words, a songwriter accused of plagiarism could say: I am going to claim no more than £100 from my accuser if I win the case, and they will be able to claim no more than £100 from me if I lose. It would stop in an instant the practice of litigants trying to scare people with the threat of legal fees – and turn the legal system into much more of a level playing field for all.

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