What can the creative industry learn from the Ed Sheeran copyright infringement case?

Ed Sheeran has been vindicated after being accused of borrowing ideas from other songwriters and incorporating other people’s work into his music without approval. Ed Sheeran always denied the claims and has stated that his work is either original or he has given full credit. The case itself captured the public imagination, with many seeing the judgement as ground-breaking.  

As Intellectual Property lawyers we find this case interesting and it provides a helpful example for businesses to understand the different types of responses that can be made if faced with an Intellectual Property infringement allegation, both in and beyond the creative industry. 

Sheeran’s creative tactic: Apply to the court for a non-infringement declaration 

In Ed Sheeran’s case, the legal team representing him decided to apply to the court for a non-infringement declaration. This was quite an unusual response when faced with an accusation because it means the accused person is the one who starts the court proceedings – effectively asking pre-emptively for a “not guilty” verdict. A non-infringement declaration is a declaration from the court that an act does not, or a proposed action would not, constitute an infringement of an intellectual property right.  We would expect that Sheeran’s team will first have written to the accuser asking for a written acknowledgment of the declaration sought and that this was refused. 

A likely explanation for this tactic from Sheeran is that the reputational damage from IP accusations is a big problem for public figures even if the accuser never brings a court case. Ed Sheeran has built a reputation based on his song writing ability and any suggestion of guilt would cast doubt over credibility. He took matters into his own hands by starting the court case himself. 

Our Intellectual Property solicitors advise clients who may find it necessary to seek a declaration. The issue arises not only where a celebrity’s reputation is at stake (as with Sheeran) but also where our clients find that their product listings have been removed from Amazon or other platforms following a complaint. 

More typical responses to an allegation of infringement 

Most people receiving an accusation of infringement are not financially resourced take the risk of bringing their own high court proceedings seeking a declaration. We more often see, and advise on, the responses below.  

Denial 

The most straightforward option available to someone who has been accused of Intellectual Property infringement is to deny it.  To do this we will need to respond directly to the person who sent the cease and desist letter. We may say you have no case to answer. If the allegation has plausibility, we may explain the reasons why you have not infringed the Intellectual Property and attack any evidence of infringement that was provided.  

Claim that the Intellectual Property is invalid 

One approach you can take is to claim that the Intellectual Property is invalid, asking the court or tribunal to cancel or revoke any registrations of the Intellectual Property on either absolute or relative grounds.  This might be on Absolute grounds – e.g. claiming that the Intellectual Property is generic or not distinctive enough. Or it might be on Relative grounds – A claim that an earlier Intellectual Property registration or earlier right would cause a conflict if it were used. 

Dispute the ownership 

Ownership of IP is hard to establish. Where there has been a commercial relationship, it’s often helpful to challenge who really owns the IP in question. In extreme situations, we sometimes reply to the accuser pointing out that our client is in fact the true owner and they are the infringer. In court, this is most often done as a counterclaim accompanying the defence to any court proceedings.  In tribunals, this is done through separate proceedings such as patent entitlement proceedings.  

What to do if you are faced with an infringement claim? 

If someone has accused you of copyright infringement, early legal advice is important as getting the strategy right from the outset can make a real difference to the outcome.