Carey and Golden vs Sheeran, Hill, McGraw and others
2018 • Settled • New York, USA
Claimant Work: When I Found You
Defendant Work: The Rest Of Our Life
Ed Sheeran, as co-writer of a song for Tim McGraw and Faith Hill, has been named as a defendant on 10 January 2018 in a new case to emerge, claiming copyright infringement of the country music duet The Rest Of Our Life against Jasmine Rae's 2015 song When I Found You.
Australian singer-songwriter Jasmine Rae wrote the song When I Found You in 2014 and it was first released on her album Heartbeat in 2015. In 2016 it was released as a single, and the video reached number 1 on the Australian country video chart. When I Found You was co-written by Rae (using her surname Eldridge), with Australian keyboard player Beau Golden and musician and producer Sean Carey, former guitarist with the band Thirsty Merc.
US country artists Tim McGraw and Faith Hill released the song The Rest Of Our Life in October 2017. The Rest Of Our Life was co-written by Ed Sheeran, Johnny McDaid, Steve Mac and Amy Wadge.
A fan alerted Jasmine Rae to the similarity between the two songs, and she played them to Golden and Carey in December 2017 who decided to take legal advice. The case was complicated by the fact that Jasmine Rae's boyfriend Tim Holland works for Sony Music Entertainment, and had been aware of the similarities between the two songs. Sony was the Nashville record label that released The Rest Of Our Life and was named as a defendant in this action. Jasmine Rae decided on 21 December not to take part in any legal action against Sony Music, stating in an email that she would
"not participate in any legal action of any kind against the song’s recording artists . . . the owner of the recorded track master . . . or their record company, Sony Music Entertainment . . . [she would] not take this action on moral grounds . . . [and not] be part of any action that defames, courses (sic) distress, causes embarrassment or damages relationships between people and organisations (sic) who have done nothing wrong . . . my partner Tim works for Sony Music Entertainment and has overseen the marketing for ‘The Rest of our Life’ in Australia. He works directly with the Tim and Faith label team in Nashville. Taking such action would compromise both his position and that of the people he reports to and this is not something I’m prepared to do."
On 10 January 2018 The Hollywood Reporter revealed that a lawsuit had been served on the writers and performers of The Rest Of Our Life, claiming "willful copyright infringement" on behalf of the other two writers of When I Found You, Sean Carey and Beau Golden.
The court papers list the four writers of The Rest Of Our Life, along with their publishers, the performers Tim McGraw and Faith Hill and their record labels as defendants, a total of 15 different individuals and entities. They claim "in many instances, verbatim, note-for-note copying of important and original elements of [When I Found You]".
The claim was for $5m based on an estimate of the revenues earned by The Rest Of Our Life since its release, with both single and album scoring big hits in the USA, live performances and television broadcasts.
In November 2018 it was reported that the case had settled. No subsequent changes were made to the royalty shares of The Rest Of Our Life, suggesting that the settlement had been a cash payment, the terms of which remain confidential.
Case for infringement
The case put forward on behalf of Carey and Golden highlights the similarities at the start of the songs, stating that they are "compositionally vital to the overall mood and musical context of both works". The papers put forward the following arguments in favour of infringement:
As well as having similar piano introductions, the chord structure of both songs is the same for the opening nine bars. The key and time signature of both songs are identical, and the speed/pace of both is almost the same.
The similar material from the first eight bars is repeated during the same sections of the second and third verses.
There is similarity between the phrase lengths, and the gaps between the phrases.
There is lyrical similarity in the themes of "marriage, the passage of time, ageing, and the way that the romantic relationship protects the speaker against vulnerability".
The two works could not have been independently created.
Sony Records were aware of the similarity between the tracks before the release of The Rest Of Our Life.
Jasmine Rae's boyfriend Tim Holland may have given the song When I Found You to Sony to promote Rae's work, and Sony may have passed the song to the writers of The Rest Of Our Life.
The song When I Found You was a big hit in Australia in 2016 at the time when Ed Sheeran was touring extensively in the country.
Case against infringement
Although the opening piano material is similar, the descending notes of the major scale are very common in music, in this case using the first three notes in reverse order: 3, 2, 1. The opening melody of the first two phrases follows this descending pattern moving down from F# to E and D. The chords move from the tonic key of D to the subdominant key of G and back - a well-used harmonic device in musical "scene setting".
The opening chords of The Rest Of Our Life do not exactly match those of When I Found You, as is claimed in the court papers (para. 65):
When I Found You: D G9 G9 D The Rest Of Our Life: D G9 G9 D
The second and third chords of The Rest Of Our Life are straight G chords, without the added 9 (the effect of the 9 is to add colour with the addition of the note A to the G chord, the second or ninth note above the root G).
After the first two phrases the songs move apart harmonically, with The Rest Of Our Life introducing the new chord of B minor in bar 10. The chords, melody and lyrics of the chorus, bridge and middle eight sections bear no coincidence between the two songs.
The complaint on behalf of Carey and Golden concentrates on the first nine bars (or first two lines) of the extracts below. There is a visible similarity between the first two bars of piano accompaniment, and the melody line follows the same descending shape in its first two phrases.
Owing to the freedom of style in the singing of both songs it is hard to reproduce exactly in music notation what is sung.
When I Found You
(Eldridge/Golden/Carey) Ⓒ Eldridge/Golden/Carey. Recording by Jasmine Rae ℗ 2015 Jasmine Rae, exclusively licensed to Australian Broadcasting Corporation.
The Rest Of Our Life
(Sheeran/Mac/Wadge/McDaid) Ⓒ Kobalt Music Publishing Ltd/Sony ATV Music Publishing (UK) Ltd/Bucks Music Group Ltd/Rokstone Music Ltd. Recording by Tim McGraw and Faith Hill ℗ 2017 McGraw Music, LLC, under exclusive license to Sony Music Entertainment.
Although there are clearly identical phrases common to both songs, it will be up to the publishers of The Rest Of Our Lives to demonstrate that these phrases are musical commonplace and therefore uncopyrightable. They can do this by providing examples of similar phrases in earlier songs or instrumental music.
It is hard to argue that access to the original song would not have been possible, and it is possible therefore that subconscious copying of the opening could have taken place.
The settlement in this case was referred to in the subsequent case brought against Sheeran and co-writers by Sam Chokri against Shape Of You, seeking to refer to the settlement as similar fact evidence that Sheeran had previously copied others' songs. However, as the settlement had not been made public and no royalty shares were paid to the writers of When I Found You, this song was not allowed to be brought as similar fact evidence.
The Independent article on the case from 16 January 2018.
Musicfeeds.com Australia article from 12 January 2018 including a window to the court papers.
Downloadable pdf of the court papers.