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Carrie Underwood was named the key defendant in a lawsuit over NBC's Sunday Night Football theme song, "Game On," but a trial for copyright infringement will be unlikely in this case.

By Michael McCann
July 06, 2019

From the first time it aired on Sunday Night Football last September, Carrie Underwood’s “Game On” has sparked conversation. Viewers have debated whether the song is an improvement or downgrade of Underwood’s “Oh, Sunday Night,” which played on SNF from 2014 to 2018 and which many viewers thought sounded much like Underwood and Miranda Lambert’s duet "Somethin' Bad.”

Choice of song is an important part of SNF. The opening music sets the tone for the broadcast and helps to attract—and keep—viewers. Along those lines, NBC is heavily invested in its relationship with the NFL and the exclusive right to broadcast the weekly NFL game scheduled on Sunday nights. As part of a broadcasting contract that runs from 2014 to 2022, the network is paying the league a staggering $8.6 billion. Every piece of the SNF broadcast must thus be optimized and the introductory song is part of the SNF brand.

Underwood now faces a new line of discussion, and it is one that has more at stake than the popularity of her music. Heidi Merrill, a singer-songwriter from Newport Beach, California, has joined three other songwriters in suing Underwood for copyright infringement. Their complaint was originally filed last month in the U.S. District Court for the Southern District of New York in Manhattan. An amended complaint was filed on Wednesday. It has been assigned to Judge Edgardo Ramos, whose name may sound familiar: during the spring, Judge Ramos presided over the criminal corruption trial of Adidas consultant Merl Code and basketball client recruiter Christian Dawkins.

Merrill and her co-plaintiffs stress that they wrote, composed and recorded a song called "Game On" in 2016. Although Merrill concedes that Underwood’s version of "Game On" is different, Merrill insists that Underwood’s alterations are inconsequential. As Merrill sees it, Underwood was legally obligated to acknowledge Merrill as the song’s author and to acquire Merrill’s permission in order to use the song. Merrill depicts Underwood as falsely claiming that "Game On" is her original work.

Underwood is the key defendant, but eight other parties, including Underwood’s producer (Mark Bright), the NFL, NBC, Warner/Chappell Music and EMI Entertainment World have also been sued. Each has played a role in SNF using and broadcasting Underwood’s version of "Game On."

Merrill has retained attorneys Sam Israel and Timothy Foster to represent her in the case. Both are seasoned intellectual property litigators.

A Brief History of the two "Game On" songs

Merrill’s complaint, as authored by her attorneys, offers a retelling of facts from her vantage point. It is therefore not a neutral narration. When Underwood and the other defendants answer Merrill’s complaint and file other pleadings, different and in some instances contradictory facts will be presented.

With that caveat in mind, Merrill contends that the idea behind Game On occurred to her in early 2016. Merrill, at the time, was heartened by the success of her other sports-centered song, Cornhusker Strong. Composed a year earlier, Cornhusker Strong was intended to be an anthem for the University of Nebraska Cornhuskers football team. Merrill is a graduate of the University of Nebraska and also graduated from high school in Nebraska. Cornhusker Strong has since become a popular song on YouTube. With the success of Cornhusker Strong, Merrill released her first album, Homegrown, on Oct. 2, 2015.

In June 2016, Merrill met with three others in Nashville to compose and record "Game On." By creating the song, the group obtained a copyright in it. Copyright protection begins the moment a work is created in tangible form, such as an audio recording. It is not dependent on registration with the U.S. Copyright Office, nor does it require affixing the © symbol. Registration, however, provides certain legal benefits, including a presumption of ownership and the ability to sue for infringement. Merrill’s "Game On" was registered later on with the U.S. Copyright Office, with an effective registration date of May 24, 2019.

A video for "Game On" was produced towards the end of 2016. In March 2017, the video was published on YouTube. It was during that same month, Merrill insists, that she began to market the song. Her goal was to have the song licensed for use in TV broadcasts of sporting events. The marketing seemed to work. According to Merrill’s complaint, CBS Inside College Basketball used the song during one of its broadcasts that month.

Five months later, Merrill saw a chance to elevate "Game On" to a new level. She attended a conference in Nashville mainly because she knew that Bright, Underwood’s producer, would be in attendance. Merrill was under the impression that Bright regularly receives pitches of new songs written by other and, by implication, less well-known or up-and-coming performers. In turn, Bright presents relatively appealing pitches to Underwood for her consideration as possible songs. Merrill’s impression of Bright seems accurate: in a 2016 interview with SongLink International, Bright discussed the process of pitching songs to Underwood.

While at the Nashville conference, Merrill approached Bright and asked about Underwood’s introductory song for SNF. She inquired whether Underwood might be interested in a new song. As depicted by Merrill’s complaint, Bright essentially responded by saying that he wasn’t sure. Undeterred, Merrill explained that she had written and recorded a sports-themed song that might enhance the SNF broadcast. Bright then suggested that Merrill email information about the song to his assistant, Jennifer Rai. He then shared Rai’s email address.

Soon thereafter, Merrill emailed Rai the YouTube link to "Game On" and wrote that it would be “very fitting for the sports theme . . . with Carrie.” Rai, Merrill says, didn’t return her email. Six weeks later, Merrill sent Rai another email and included a link to another one of her songs. Rai replied to this second email, but the reply contained a polite rejection. “I’m sorry,” Rai wrote. “We’re going to have to pass.”

Merrill believed that her attempt at convincing Underwood to sing "Game On" had failed.

Yet when football season rolled in September 2018, Merrill was stunned to see Underwood debut her new SNF introductory song: "Game On."

Merrill contends that at some point after she emailed the link to Rai, Bright and his colleagues must have played "Game On" to Underwood and Underwood decided to use it.

Merrill’s copyright infringement claim

Merrill’s core legal claim is that Underwood and her co-defendants used, and profited from, "Game On" without Merrill’s permission. More technically, Merrill alleges that Underwood engaged in copyright infringement, in that Merrill possessed a valid copyright in the song and Underwood reproduced and globally broadcast it without Merrill’s authorization. In possessing a copyright, Merrill and her fellow songwriters were the exclusive owners of all right, title and interest in the song.

Merrill also sues the NFL and NBC because of their role in broadcasting and distributing the song to television audiences and fans in stadiums. The NFL and NBC, Merrill insists, “gained monetary and/or goodwill benefits” from using "Game On." To accentuate that point, Merrill’s complaint notes that SNF “is among the most-watched programs on television in the United States and is often the single highest-rated broadcast on television during the weeks in which it airs.” Further, SNF “is also broadcast internationally, including throughout Latin America and in the United Kingdom, Australia, Brazil, Canada, and the Philippines.” Merrill is incentivized to depict SNF’s audience as large as possible: the more viewers, the greater the potential monetary damages.

Merrill demands several types of remedies. They include a court-ordered injunction to stop Underwood, the NFL and NBC from continuing to use "Game On." Merrill also seeks unspecified monetary damages that would be proven at trial. She also asks to recover all of the profits attributed to the song, “including a full accounting of and constructive trust” that details those profits.

Just how similar are the two "Game On" songs?

In Merrill’s view, Underwood’s Game On is “substantially—even strikingly—similar, if not identical” to her "Game On." To advance that argument, Merrill notes that the songs not only have the same title, but, in her view, they are also similarly constructed.

To that point, Merrill contends the songs share comparable “tempo, meter, time signature, rhythmic contours and patterns, melodic contours and patterns, hooks (including the shared key phrase of the chorus, “Game On”), note progression and use, and chord progression.” In copyright litigation involving songs, much attention is paid to rhythmic similarity, repetition of notes and use of similar phrases.

Rather than reading further about whether the songs sound alike or unalike, I encourage you to listen to both and compare for yourself.

Here is Merrill’s "Game On" and accompanying lyrics:

Lyrics to Merrill’s version of "Game On"

Can you feel it?

Here comes the storm

Can you hear it?

A hundred thousand strong

Can you taste it?

On the tip of your tongue

Are you ready?

Let’s get it on

The time is now

No one here should be sitting down

Get up. Get loud.

Make your mama proud

Game On

Game On

Game On

When the chips are down

Pump up the sound

Because we all know this song

This is sacred ground

We don’t mess around

Don’t stop. Don’t stop.

The time is now

No one here should be sitting down

Get up. Get loud.

Make your mama proud

Game On

Game On

Game On

In all

On and on and on and on

The time is now

No one here should be sitting down

Get up. Get loud.

Come on, make your mama proud

Alright, y’all, you ready to bring it home?

Come on then

One, two, three

Game On

Game On

Game On

And here is Underwood’s Game On and accompanying lyrics:

Lyrics to Underwood’s version of Game On (as played before a Bears-Packers game)

Everybody's ready for the party

Everywhere coast to coast

Come on we're just getting started

Been waiting all day let's go

The gangs all here for the throw down

A rowdy crowd rocking the place

The Bears and the Pack in a showdown

Fired up and ready to play

Game on!

Hey it's Sunday night

Game on!

Hey turn up the light

America's game on NBC

The only place to be

Game on! Game on!

It's Sunday night

Oh America's game on NBC

The only place to be

Game on! Game on!

It's Sunday night

It's Sunday night

It's Sunday night

Underwood’s defenses and challenges

Underwood will insist that the two songs do not sound alike, an argument that would be strengthened if the accompanying sheet music corroborates the songs’ differences. She’ll also highlight that the songs use different lyrics. In other words, she will depict the two songs as completely different songs. Along those lines, Underwood probably won’t argue “fair use”—which in music generally refers to copying a part of a song and repurposing or “transforming” it without violating a copyright. Underwood is more likely to contend that these are simply two separate songs and that no copying occurred.

Ryan Vacca, a professor at the University of New Hampshire School of Law and expert in copyright and music, believes that Underwood has an advantage in terms of stark variations between the two songs.

“There are, of course, similarities in the titles of the songs and the hooks – ‘Game on!’,” Vacca tells SI. “But short phrases and song titles aren’t entitled to copyright protection. Other than that, the similarities are slight or so ubiquitous in country and pop music that it will be difficult for the plaintiffs to prevail.”

That said, Vacca stresses that Merrill’s case is hardly frivolous. “There are enough similarities to make the lawsuit survive preliminary challenges,” Vacca contends. He also draws attention to the fact that while plaintiffs in music copyright cases often have difficulty “proving that the defendant had access to the plaintiff’s work,” Merrill claims to have evidence showing that she emailed the song to Rai, the assistant to Bright. There is also evidence that Bright is receptive to pitches as a matter of course. Merrill’s song was also posted on YouTube and appeared in one episode of CBS Inside College Basketball, though Vacca believes those facts alone wouldn’t be enough to show that Underwood accessed the song.

Merrill and her legal team might be optimistic given recent court rulings in high-profile music cases. Four years ago, a jury in the U.S. District Court for the Central District of California returned a verdict in favor of the estate of Marvin Gaye in a copyright infringement case brought against Pharrell Williams and Robin Thicke over the 2013 hit song "Blurred Lines." Although the two songs used different melodies and sounded different, the jury found that Blurred Lines infringed the copyright of Gaye’s “Got to Give It Up.”

During the trial, an expert witness for the Gaye family, musicologist Judith Finell, testified that there was a “constellation” of similarities between the two songs. Those purported similarities included hooks, bass melodies, percussion choices and keyboard parts. Yet an expert for Williams and Thicke, musicologist Sandy Wilbur, testified that there were no meaningful similarities between the two songs in terms of melodies, rhythms, harmonies, structures, or lyrics. The verdict was upheld on appeal and Williams and Thicke were ordered to pay Gaye’s estate nearly $5 million.

As the Blurred Lines case was litigated in a different federal district, it is not binding precedent on Merrill’s case with Underwood. However, the use of expert testimony and comparison of song structure highlight how a trial involving Merrill and Underwood could play out.

A trial is unlikely

In the coming weeks, attorneys for Underwood, the NFL and NBC will answer Merrill’s complaint. They will then seek to have the case dismissed. The process of answering a complaint, filing a motion to dismiss (and then attorneys for Merrill filing an opposition to the motion) will play out over months—and perhaps well past the start of the 2019 NFL season. If a trial occurs, it would not happen for many months.

In the meantime, expect there to be settlement talks between the parties. Vacca believes that if the case survives dismissal, both sides would have clear incentives to settle. For Underwood, the NFL and NBC, the title song for SNF “is such a small part of the revenue-generating event,” that Vacca sees offering Merrill credible settlement terms as a more efficient strategy than waging a drawn-out litigation. To be sure, Underwood, the NFL and NBC also have the financial wherewithal to offer an attractive sum of money to make litigation go away. The defendants might also wish to avoid pretrial discovery, which would entail Underwood and executives from the league and network testifying under oath and sharing emails. For Merrill and her co-plaintiffs, key differences between the two songs and the accompanying risk of losing could make a settlement appealing.

Sports Illustrated will keep you updated on the case.

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