(S.D. N.Y., filed 2018)
Complaining Work |
Defending Work |
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Sean Carey, Beau Golden, Jasmine Rae “When I Found You”
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Edward Sheeran “The Rest of Our Life”
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Comment by Charles Cronin
An imaginative claim, as alleged in the chaotic (and unintentionally amusing) Complaint, based not on evidence of appropriation of protected musical expression, but rather on fanciful and legally irrelevant allegations of intrigue among one of the authors of the complaining song and an employee of the defending music publisher Sony.
The infringement claim is based on the fact that the introductions of both songs open with the same descending 4-note motive. There is nothing original about the motive, or the two chords supporting it. The “evidence” presented in the music notation in the Complaint (pp. 23 & 24) illustrates the similarities, but is irrelevant on the question of infringement because the musical ideas recorded there are utterly generic.
Notice the curious error in the third measure of the transcription of the plaintiffs’ melody (page 24) which is missing the 2nd and 3rd beats. In fact, in this measure the plaintiffs’ melody continues in a different trajectory from the defendants’. Rather than indicate that significant difference, the plaintiffs suppressed this information, but forgot to cover their having done so by completing the measure by altering the quarter note to a dotted half as found in the defendants’ melody.
The Complaint’s breathless narrative style suggests it was written for (or by) high schoolers, rife with unsupported statements (“…the blatant copying of Plaintiffs’ song”) and linguistic errors (“…there are a plethora of ways in which Defendants could have heard…”). But most extraordinary, and entertaining, is the Complaint’s attempt to manufacture an intrigue establishing that Sony (the deep pocket) not only was aware of the alleged infringement, but also abetted it.
It alleges that Jasmine Rae, one of the authors of the complaining song, was the girlfriend of Tim Holland, a mid-level employee of Sony in Australia. Rae is cast as a spoilsport who won’t participate in this attempt to shake down Sony because of her benighted loyalty to her friend working for the company. The Complaint also notes that she’s a sloppy speller who thinks the word “organizations” is spelled “organisations” (of course her spelling of the word is standard in most English speaking countries, including Australia, where she lives).
Starting with this tidbit of information the Complaint weaves a preposterous scenario of misdeeds and cover-up by defendants based upon extravagant inferences that Holland (therefore, Sony) deliberately brought the complaining song to the attention of the defendant songwriters, and believed that the defendants’ subsequent song infringed upon the plaintiffs’. This elaborate house of cards is nothing more than a smokescreen by which the plaintiffs attempt to conceal the flimsiness of their claims of musical similarity. The Court will undoubtedly realize this, but let’s hope it also does its part to tame such opportunist litigation by awarding attorney fees to defendants, and sanctioning the plaintiffs’ lawyer.
… Regrettably, it never had the opportunity to do so as the parties “settled” and the case was closed in November of 2018. Assuming, however, that Sheeran threw plaintiffs a financial bone to shoo them away, having done so may only encourage others to attempt such shakedowns of the successful singer.