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Unreleased Ed Sheeran song is played by mistake in Shape Of You copyright battle

An unreleased Ed Sheeran song has been played by mistake as a High Court hears the singer-songwriter is an ‘obsessive music squirrel’ at the Shape Of You copyright battle.   

The singer looked confused when a short blast of music was heard in the hearing on Monday as he faced questions over how the 2017 number one song was created.

Glancing at his lawyers, Mr Sheeran said: ‘That’s a song I wrote last January. How have you got that?’ 

Mr Sheeran and two of his Shape Of You co-authors, Steven McCutcheon and John McDaid, are involved in a legal dispute with two songwriters, Sami Chokri and Ross O’Donoghue, who allege the song rips off parts of their 2015 track Oh Why – something that is denied.

Ian Mill QC, Mr Sheeran’s barrister, later told the court that the 31-year-old was left ‘disconcerted’ by the music being played while he was asked to listen to early recordings from the creation of Shape of You, the second best-selling digital song worldwide in 2017.

Mr Mill explained that the incident happened ‘by mistake’ through the use of Mr McCutcheon’s computer and his iTunes which ‘contains some unreleased material’. 

He apologised, saying: ‘I’m sure it won’t happen again.’

Andrew Sutcliffe QC, representing Mr Chokri and Mr O’Donoghue, also suggested that Sheeran was ‘an obsessive music squirrel’ who ‘consumed music voraciously in 2015 and 2016’. 

An unreleased Ed Sheeran song has been played by mistake as a High Court hears the singer-songwriter is an ‘obsessive music squirrel’ at the Shape Of You copyright battle. Pictured: Sheeran  outside  the High  Court in London

The singer looked confused when a short blast of music was heard in the hearing on Monday as he faced questions over how the 2017 song was created. Glancing at his lawyers,  Mr Sheeran said: 'That's a song I wrote last January. How have you got  that?'

The singer looked confused when a short blast of music was heard in the hearing on Monday as he faced questions over how the 2017 song was created. Glancing at his lawyers,  Mr Sheeran said: ‘That’s a song I wrote last January. How have you got  that?’

Sami Chokri, pictured, and Ross O'Donoghue,  allege the song rips off parts of their 2015 track Oh Why - something that is denied by Sheeran

Sami Chokri, pictured, and Ross O’Donoghue,  allege the song rips off parts of their 2015 track Oh Why – something that is denied by Sheeran

During Monday’s proceedings, Mr Sheeran frequently burst into song and hummed musical scales and melodies as he was questioned over how Shape of You was written.

Mr Chokri, a grime artist who performs under the name Sami Switch, and Mr O’Donoghue, claim that a central ‘Oh I’ hook in Shape Of You is ‘strikingly similar’ to an ‘Oh Why’ refrain in their own composition.

Mr Sheeran described the hooks as using the ‘pentatonic scale’ with ‘vowels’ when asked if they were similar, with several early initial iterations of parts of Shape of You played in court.

Mr Sutcliffe asked the singer: ‘It was a phrase you already had in your head after listening to the chorus of Sami’s song Oh Why, wasn’t it?’

‘No,’ Mr Sheeran replied.

He also referred on Friday to Mr Sheeran as a ‘magpie’ who stole parts of his hit from uncredited songwriters, which the 31-year-old denies, saying his songs are ‘excitement bottles’. 

Sheeran and two of his Shape Of You co-authors, Steven McCutcheon and John McDaid, pictured, are also involved in the legal dispute with two British songwriters

Sheeran and two of his Shape Of You co-authors, Steven McCutcheon and John McDaid, pictured, are also involved in the legal dispute with two British songwriters

In his written evidence, Mr Sheeran, who admitted he ‘didn’t take music theory’ in court, said the ‘minor pentatonic pattern’ was ‘very common’ and used in his song I See Fire and by Nina Simone.

He sang a snippet of I See Fire, Nina Simone’s Feeling Good, as well as Shape of You, to the courtroom on Monday.

‘If you put them all in the same key they sound the same,’ he said.

The court heard that Shape of You was written at Mr McCutcheon’s Rokstone Studios in west London’s Parsons Green, where Mr McCutcheon initially came up with a marimba sound, in October 2016.

The writers decided on including a vocal chant section using the minor pentatonic scale after the song’s chorus.

Mr Sheeran decided singing the section using the word ‘heya’ was too ‘close to the bone’ because it sounded similar to a song called No Diggity by the band Blackstreet.

Mr Sheeran said he decided singing the section using the word 'heya' was too 'close to the bone' because it sounded similar to a song called No Diggity by the band Blackstreet

Mr Sheeran said he decided singing the section using the word ‘heya’ was too ‘close to the bone’ because it sounded similar to a song called No Diggity by the band Blackstreet

Mr Chokri, pictured, and Mr O'Donoghue allege that Shape Of You infringes 'particular lines and phrases' of their song Oh Why

Mr Chokri, pictured, and Mr O’Donoghue allege that Shape Of You infringes ‘particular lines and phrases’ of their song Oh Why

He repeatedly told the court that he, Mr McDaid and Mr McCuctheon wrote the song together.

Mr Sutcliffe claimed Mr Sheeran’s co-authors could not recall ‘how this Oh I section came into being’, suggesting it was because the best selling singer ‘originated it’.

‘No,’ Mr Sheeran said, adding: ‘I would say the melody and all of it was all of us three in a circle, bouncing back and forth. That was how it originated.’

‘Three people could not create the germ of the melody,’ Mr Sutcliffe claimed, but Sheeran replied: ‘Why can’t three people create a melody?’

Mr Sutcliffe earlier suggested that Mr Sheeran was ‘an obsessive music squirrel’ who ‘consumed music voraciously in 2015 and 2016’.

The singer has previously denied that he was ‘talent spotting’ and ‘plugged in’ to the UK music scene in 2015, when Mr Chokri was making a return after a two-year absence.

Sheeran and his co-authors launched legal proceedings in May 2018, asking the High Court to declare they had not infringed Mr Chokri and Mr O'Donoghue's copyright

Sheeran and his co-authors launched legal proceedings in May 2018, asking the High Court to declare they had not infringed Mr Chokri and Mr O’Donoghue’s copyright

On Monday, he told the court he had ‘disappeared for the entire year’ in 2016 and ‘got rid’ of his phone in late 2015.

‘Of course I was listening to stuff here and there but I was not actively looking for it,’ he said.

Mr Chokri and Mr O’Donoghue allege that Shape Of You infringes ‘particular lines and phrases’ of their song Oh Why.

But Mr Sheeran’s lawyers have told the High Court that the singer and his co-writers have no recollection of having heard Oh Why before the legal fight and deny the allegations of copying.

Mr Sheeran and his co-authors launched legal proceedings in May 2018, asking the High Court to declare they had not infringed Mr Chokri and Mr O’Donoghue’s copyright.

In July 2018, Mr Chokri and Mr O’Donoghue issued their own claim for ‘copyright infringement, damages and an account of profits in relation to the alleged infringement’.

The trial before Mr Justice Zacaroli, which is expected to last three weeks, continues.

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