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In a complaint filed in Manhattan federal court, the six members of the vocal sextet claimed that H.E.R. (real name Gabriella Sarmiento Wilson) used “substantial original segments” from their “Come Unto Me” in the R&B singer’s song without permission.
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“‘Could’ve Been’ is a song comprised of substantially similar compositional, rhythmic and lyrical elements to ‘Come Unto Me,'” attorneys for the Take 6 members wrote. “Defendants have profited greatly from the commercial success of the infringing composition and infringing sound recording.”
Released in September 2018, “Could’ve Been” was a minor hit off her EP I Used to Know Her: The Prelude, spending one week at No. 76 on the Hot 100 and reaching No. 39 on the Hot R&B/Hip-Hop Songs. The song, featuring Bryson Tiller, was nominated for Best R&B Song at the at the 62nd Grammy Awards and was later included in H.E.R.’s I Used to Know Her compilation album.
“Come Unto Me” was released on Take 6’s 1990 album So Much to Say, which spent 8 weeks on the Billboard 200 and later won the award for Best Contemporary Soul Gospel at the 33rd Grammy Awards.
Listen to the two songs here:
In a statement to Billboard, Take 6’s attorney James Walker said he had consulted with a musicologist who concluded that it was “obvious” that the group’s sample had been used in H.E.R.’s song. “It is most unfortunate that after months of trying to resolve this, Take 6 … is left with no alternative but filing this serious lawsuit,” Walker said.
A representative for H.E.R. did not immediately return a request for comment on Wednesday. A rep for Sony Music Entertainment, which was also named in the lawsuit as the label and publisher of “Could’ve Been,” also did not return a request for comment.
Tuesday’s new complaint is an updated version of a lawsuit filed in April; the previous iteration of the case did not name H.E.R. as a defendant. At the time, Walker said that she was left off the lawsuit because he was trying to determine what percentage of the song she owns.
Read the full lawsuit here: