Can the courts of England and Wales establish a ‘character of copying’ in the assessment of similar fact evidence for cases regarding musical copyright?

Abstract

Music as a form of expression presents numerous challenges when establishing the correct approach under the law of copyright, including what standards should be applied, and what evidence should be accepted to support or deny claims of copying by one artist of another. The High Court of England and Wales notably considered similar fact evidence in music copyright in Edward Christopher Sheeran MBE & Ors v Sam Chokri & Ors in 2019. Whilst the case has been set down for trial in 2022, an interlocutory hearing before Nugee J considered whether or not prior examples of copying by Sheeran supported a claim of infringement in ‘Oh Why’ by Chokri. Nugee J concluded that the inclusion of this evidence ‘could be logically probative’.2 He applied the decision of the House of Lords in O’Brien v Chief Constable of South...