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Songwriters say "Game On" in copyright infringement lawsuit

News and Notes Focused on the 3 Public Faces of IP Law

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On June 19, songwriter Heidi Merrill and three other cowriters filed a copyright infringement suit in U.S. District Court in New York against singer Carrie Underwood, the National Football League, NBCUniversal Media, LLC, and several related defendants. The complaint alleges that the defendants used Merrill's sports-themed song "Game On" as the 2018 theme song for "Sunday Night Football" without the writers' permission and without any compensation to them for its use.

Merrill's allegations

As the complaint tells the story, Merrill wrote the song in 2016 with the other three plaintiffs. They created a music video of it and added it to YouTube in 2017. One broadcast of "CBS Inside College Basketball" in 2017 used the song.

The same year, Merrill shopped "Game On" to the defendants as a potential fit for use on the television show "Sunday Night Football." The defendants rejected the song, but then it (or an almost identical version) became the theme song with the same name sung by Underwood for the games throughout the 2018 season.

The song's writers received a federal copyright effective May 24, 2019 and filed the suit the next month.

The complaint alleges that the plaintiffs are the song's only owners with all rights to it and that Underwood and the other defendants had access to it because Merrill submitted it for their consideration. It further asserts that the defendants' willfully copied "original, copyrightable elements" of the original and used it for their own profit and gain.

Specifically, the plaintiffs say that the songs are "substantially -- even strikingly --similar, if not identical ... including in tempo, meter, time signature, rhythmic contours and patterns, melodic contours and patterns, hooks ... note progression and use, and chord progression."

Further, the complaint alleges that the infringing song was broadcast internationally and in football stadiums, and the defendants' wrongly made money from licensing it and earned public goodwill from its broadcast.

Relief sought

Plaintiffs seek a jury trial and money damages, profits, legal fees and costs, interest, and a preliminary and permanent court order that defendants stop using the song.

The complaint is available on Westlaw.

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