Richard Busch, who successfully won a trial for the family of Marvin Gaye in the "Blurred Lines" lawsuit, is representing the plaintiff. The Nashville, Tennessee-based attorney previously took on Sheeran in a $20 million copyright lawsuit over another hit, "Photograph." That case ended in a settlement that resulted in two suing songwriters being added to credits and gaining a significant share of royalties.
Now, with song theft allegations continuing to draw great attention (see the fuss this week over how the publisher of Radiohead's "Creep" is making legal demands over Lana Del Rey's "Get Free"), three music superstars along with co-writers Johnny McDaid and Amy Wadge as well as music industry giants Sony/ATV, Universal Polygram, WB Music plus others -- must respond to new charges of ripping off material. In this case, it's alleged that the copying was fully known by employees of Sony Music.
"It very well may have been an agent of Sony Music Entertainment who provided the other defendants herein with access to the Song," states the complaint.
According to the lawsuit, Carey and Golden have record deals with major labels and music direction positions with Netflix. "When I Found You" was released on ABC Records by co-writer and recording artist Jasmine Rae and was a hit in Australia.
Rae and Golden were in Carey's studio to write music last month, continues the complaint, when Rae allegedly mentioned a fan tweet about the Tim McGraw and Faith Hill song. The three listened and soon investigated taking legal action.
Busch writes that Rae wanted to involve in the process her boyfriend, Tim Holland, who was a marketing manager for Sony. They all allegedly got on a conference call and later met in person.
"During this conversation, Mr. Holland admitted to knowing about the Infringing Song months in advance of its release because he was tasked with promoting and marketing the Infringing Song and Infringing Sound Recording before its release," states the complaint. "When questioned by Plaintiffs as to his silence about the similarities between 'When I Found You' and the Infringing Song/Infringing Sound Recording, Mr. Holland stated he did not want to lose his job with Sony Music.... When pressed further by Plaintiffs, Mr. Holland indicated that he had known that the songs were substantially similar for more than two months prior to the October 5, 2017 release date of the Infringing Song/Infringing Sound Recording."
Carey and Golden say in the lawsuit they became suspicious that not only was Holland aware, but also that he was "instrumental in bringing Plaintiffs' work to the attention of the Defendants and likely provided access to it. Indeed, it strains credibility to believe that it is just a coincidence that the Infringing Song/Infringing Sound Recording, a blatant note for note copy of the Song, was created without Mr. Holland’s providing access, when Mr. Holland is the boyfriend of one of the writers of the Song. In support of this position, Plaintiffs allege, upon information and belief, that Mr. Holland presented Plaintiffs' song to Sony Music in an effort to gain exposure for Ms. Rae and promote her work."
Rae isn't a plaintiff in this case (and the lawsuit isn't shy about hinting at motive with the accusation that she didn't write an email explaining how she wouldn't participate against an action against McGraw and Hill or their record company).
An alternative theory of access is also provided in the complaint in that Sheeran was allegedly touring extensively in Australia when "When I Found You" was enjoying its biggest success on local airwaves.
The lawsuit also presents musical transcription excerpts of each of the songs to make the case of substantial similarity. Both songs are said to explore themes of marriage, the passage of time, aging, and the way that the romantic relationship protects the speaker against vulnerability. Each of the songs can be heard below.
We'll add to this story any forthcoming comment from any of the defendants. In cases like this, a judge is often tasked with determining what's really protectable and what's in the public domain. Other potential defenses include a grant of permission and independent creation.
Carey and Golden are seeking injunctive relief and at least $5 million in actual damages plus profits, a running royalty, and an award of attorney's fees and costs.