Lotte Kestner accusing ND of plagiarizing her cover of 'True Faith' for the TLOU2 CGI Trailer (update: ND acknowledge the inspiration, see threadmark)

[addik]

I'm sorry what? She has no case ethically? They copied her work and didn't credit her. That's ethically shitty.

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Please read my post. I said I don't believe they copied her work. Aka they didn't listen to her album and said, "YES WE'LL COPY THIS COVER"

It's more likely they looked at the materials, saw the Ellie played a guitar, made a stripped down version of the song--which ended up sounding like Lotte's version because these kinds of stylings or ways of covering isn't exactly original. So many "stripped down/acoustic" covers of past song are done in the industry that they end up sounding similar to each other.

Maybe ethically is a bad word, but she honestly has no case here. It's honestly not that original of a cover.

 

[Zukuu]

She doesn't have any legal grounds most likely

No, You Don’t Own Your Arrangement of That Hit Song - Romano Law

A guitarist contacted me recently. He creates arrangements of popular songs and puts the PDFs of the music for sale on his website. The first thing I asked him is whether he got permission from the copyright owners of the songs to post his arrangements, being pretty sure he hadn’t. He was...

ostrowesq.com

 

[Grimmy11]

New Order has to get royalties from it. Same goes for when people are trying to clear samples that are used in songs. As for your last question, I think they would have to only pay Paul. She deserves the credit and i'm sure they have already paid New Order to use the song.

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Thanks.

This is probably going to be an unpopular take but while I see the similarities I think paying her for this would risk opening a floodgate of people claiming royalties unfairly. I mean how many slow acoustic covers of 80's pop songs are there out there? tens of thousands? I don't think there's enough unique in the original cover to claim against the TLOU one. If that little bit at the end was enough every time an ad uses one hundreds of people will claim it's their cover.

Although maybe that's a good thing then ad agencies will stop using them to advertise every. single. thing.

 

[LewieP]

Welp, let's bring a hypothetical question; there's a lot of cover songs that are more famous than their originals, like Tainted Love, I Love Rock n' Roll or even All Along the Watchtower, so that brings the question; if someone hired a third group to do a cover of Soft Cell's version of Tainted Love, instead of covering the 60's original, which party should be credited? And which one(s) should be compensated? I am not sure. (by the way, I'm not saying her version is more famous than the original)

Also, her version has some elements that I didn't found on the original, like the voice melody in the 3:30 mark on her song, which is practically the exact same melody line in the end of the trailer, in the 0:46 mark. It's really melodic, not just free style/solo, and melody, alongside lyrics most of the time, are some of the foundations of a song, and where they usually justify copyrights claims or not as far as I know.
Not only that but the arrangement of the song is similar and even the way they portrait that melody line in question is incredibly similar.

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All I know is that Bob Dylan should be sued for trying to do All Along the Watchtower in the style of Jimi Hendrix

 

[kpaadet]

You sure do like trying to find excuses to justify stealing.

How about the claim where she says they copy the part she added? Hmm?

Also where is she trying to claim it as her own? Sheflat out says it's a cover. I guess victim blaming is easier then ever admitting Naughty Dog could ever do wrong.

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If something was stolen from her she should contact her lawyer. I guess calling someone a victim without knowing copyright laws is easier than admitting just because you're a small artist dosn't mean you're right.

I can see Sony giving her credit at some point, but more likely because it's good PR rather than them being wrong.

 

[Zaki2407]

Any Era's member who is a lawyer? what is your thought about this?

 

[SubvertedTrope]

I couldn't think of a better term. I don't like how so many people are willing to brush of someone's because there favorite game company couldn't possibly do wrong.

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Consider this: many people are brushing her off because her claims have no merit and she owns nothing.

Maybe some people too readily believe their least favorite game company is acting maliciously.

 

[ZeroX]

yeah look it's not illegal, it's just an asshole move. it should be called out as that.

She only has a say if they literally use her recording of it, as that would be using her performance.

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even that's not necessarily the case going back to the Glee thing where it looks like they literally just layered their cover over top of his and there's audio from his cover in theirs.

 

[VegiHam]

Please read my post. I said I don't believe they copied her work. Aka they didn't listen to her album and said, "YES WE'LL COPY THIS COVER"

It's more likely they looked at the materials, saw the Ellie played a guitar, made a stripped down version of the song--which ended up sounding like Lotte's version because these kinds of stylings or ways of covering isn't exactly original. So many "stripped down/acoustic" covers of past song are done in the industry that they end up sounding similar to each other.

Maybe ethically is a bad word, but she honestly has no case here. It's honestly not that original of a cover.

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She says they included a part she originally wrote in the trailer though. Is she wrong?

I don't care about her having a case, I care about big companies thinking they can do whatever they want.

 

[xmassteps]

It's not complex, she doesn't have a case. She's not the songwriter of the song and, thus, she has no rights in terms of this composition. She only has a say if they literally use her recording of it, as that would be using her performance.

She can obviously complain on moral grounds (which is what she's doing) but Sony wouldn't have had to clear anything with her or compensate her because she's not the rights holder to the composition.

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Fair enough.

 

[tidegusto]

All I know is that Bob Dylan should be sued for trying to do All Along the Watchtower in the style of Jimi Hendrix

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Ahahahaha x)

 

[Gold Arsene]

Consider this: many people are brushing her off because her claims have no merit and she owns nothing.

Maybe some people too readily believe their least favorite game company is acting maliciously.

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She doesn't even talk about owning just them using her cover but ok, this person is wrong and ND are flawless gods.

 

[Kuosi]

I thought uc4 was supposed to be the thief's end

 

[Wispmetas]

I went and heard the original song, it's undeniable this is the cover they based on. The final part of the cover on the trailer is exactly like the one on the cover on 3:30 like Lotte says. And in the original song has nothing close to even resembling that.

Now, it's a cover of a cover, if they have the rights to the original song I don't see how she can do anything. It sucks, but maybe Naughty Dog has referenced the cover on the credits of the game or something, we don't know.

 

[Vitet]

I may be incorrect, but the melody and lyrics of Lotte's song are the same as the original then it would be a cover, not a derivative work.

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The problem is the interpretation of what is a cover song and what not.

In a derivative work you MUST get the copyright owner permission, and a license has to be negotiated if you want to register, release or get some copyright fees from it. Normally ASCAP and copyright corporations would facilitate this. For example here in Spain the maximum percentage you could get from an arrangement of an existing song, after asking the original author for permission, is about 16%. The remaining 84% go to the original author. This way you have some protection as your version is also registered and if someone uses it you could have a case.

In the case of a straight cover, which is very loose on the definition, you could just got a mechanical license for it without a straight permission (but only because these mechanical licenses are already negotiated via ASCAP or others with the copyright owners). But this is very subjective, almost always everyone will ask you for permission of the original author. If they claim it and you go all in to the tribunals, is likely you will lose. For example Youtube will always prioritize the original copyright and if your video is claimed, they can monetize, mute or take down your cover. For example Nintendo is very strict with this when there is money involved, and usually just bans arrangements if asked.

In this particular case, as she is claiming the trailer version uses some of her ORIGINAL music cues she added to the cover, it's obviously a derivative work. If it was a straight cover, she would not have a case because the version would be exactly like the original without anything new added.

 

[VaanXSnake]

It wouldn't be the first time, they already did it with UC4 by using Assassins creed Black flag stuff.

 

[travisbickle]

She doesn't have any legal grounds most likely

No, You Don’t Own Your Arrangement of That Hit Song - Romano Law

A guitarist contacted me recently. He creates arrangements of popular songs and puts the PDFs of the music for sale on his website. The first thing I asked him is whether he got permission from the copyright owners of the songs to post his arrangements, being pretty sure he hadn’t. He was...

ostrowesq.com

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This.

The copyright holder owns reproduction rights of the original work and any derivatives made.

Unless someone wants to argue that her version is an original piece of artwork and not a derivative of the original, then the original copyright holder owns distribution rights to her work and any other work produced in a similar fashion. She's probably going to have to provide sales figures and get a royalty cheque ready for Factory Records or whoever owns New Orders catalogue these days.

 

[Puffy]

So she didn't write any original lyrics and the vocals at the end aren't an original melody? Failing to see why she should be compensated.

 

[Triggerhappytel]

the Uncharted 4 painting really defined the game, so indeed there appears to be a pattern. It is sad that Naughty Dog has to rely on stealing other people's work to create high quality games.

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Lol. Yes, Uncharted 4 really relied on that one art asset used for about a second in a trailer to be a high quality game. Probably would have scored in the 70s were it not for that!

 

[Dark Ninja]

She says they included a part she originally wrote in the trailer though. Is she wrong?

I don't care about her having a case, I care about big companies thinking they can do whatever they want.

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I mean do you want the probable answer or do you just want the answer you want to hear. Cause that poster provided a pretty good breakdown based on experience.

 

[mclem]

She's not talking about the lyrics. Vocals are so much more than that and include the wistful sound made. Focus on that bit.

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IANAL, of course, but... I wonder if The Great Gig In The Sky is relevant at this point?

As the band began casting around for a singer, album engineer Alan Parsons suggested Clare Torry, a 25-year-old songwriter and session vocalist. Parsons had previously worked with Torry, and had liked her voice on a Top of The Pops covers album. An accountant from Abbey Road Studios contacted Torry and tried to arrange a session for the same evening, but she had other commitments, including tickets to see Chuck Berry that evening, so a session was scheduled for Sunday evening between 7 and 10pm.

The band played the instrumental track for Torry and asked her to improvise a vocal. At first, Torry struggled to divine what the band wanted, but then she was inspired to pretend that she herself was an instrument. She performed two complete takes, the second one more emotional than the first. David Gilmour asked for a third take, but halfway through Torry stopped, feeling she was getting repetitive and had already done the best she could. The final album track was assembled from all three takes. The members of the band were deeply impressed by Torry's performance, but were so reserved in their outward response that she left under the impression that her vocals would never make the final cut. She only became aware they were used when she saw the album at a local record store, spotted her name in the credits and purchased it.

..

In 2004, Torry sued Pink Floyd and EMI for songwriting royalties, on the basis that her contribution to "Great Gig in the Sky" constituted co-authorship with Richard Wright. Originally, she had been paid the standard Sunday flat studio rate of £30 (equivalent to £400 in 2019). In 2005, prior to a hearing in the High Court, an out-of-court settlement was reached. Although the terms of the settlement were not disclosed, all pressings after 2005 list the composition to Richard Wright and Clare Torry.

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My gut's saying that if adding an improvised vocal to a song is enough to earn a songwriting credit - and if you're not familiar with Great Gig, the vocals in it are a sort of tuneful wail - then adding a 'wistful sound' to a song might be enough of an addition for that to be regarded as explicitly 'yours'.

 

[Nazgûl]

It's just Ashley Johnson singing with an acoustic guitar for like 30 seconds. I see no big deal.

 

[SubvertedTrope]

She says they included a part she originally wrote in the trailer though. Is she wrong?

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She didn't write anything though? So yes she is wrong. She added some humming but I don't know how you spell out humming in writing.

The humming/vocalization sounds similar but it's just the melody of the song, so would that even that count as something original of hers?

Also I searched for 'true faith acoustic' on YouTube and there are dozens of covers that sound almost identical. Not sure if she realistically has a case here.

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She has nothing even resembling a case and if she did twitter is not where should would take it first.

 

[alexbull_uk]

The humming/vocalization sounds similar but it's just the melody of the song, so would that even that count as something original of hers?

Also I searched for 'true faith acoustic' on YouTube and there are dozens of covers that sound almost identical. Not sure if she realistically has a case here.

 

[addik]

She says they included a part she originally wrote in the trailer though. Is she wrong?

I don't care about her having a case, I care about big companies thinking they can do whatever they want.

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Again, please read my post. I said that while you have a case with the vocal freestyling, the melody is actually consistent with the chord progression in the original song (in other words, she didn't deviate much from the melody of the original song and just added humming at the end, which is again, typical for these covers) and the vocal freestyling portion in the trailer is so short, I can't say for sure they outright plagiarized her arrangement. Take out the vocals and you still have the same song essentially.

I understand your case about big companies doing whatever they want, but I just don't see any case here. I also have a lot more opinion on this because I have encountered similar cases like this before in the industry (not to the point of a legal action, just misunderstandings and bitterness here and there) but it's off-topic and I'm probably not the best person to run to when it comes to the legalities of this issue. I can only comment from a quality/sound point-of-view.

 

[nib95]

The humming/vocalization sounds similar but it's just the melody of the song, so would that even that count as something original of hers?

Also I searched for 'true faith acoustic' on YouTube and there are dozens of covers that sound almost identical. Not sure if she realistically has a case here.

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Do you have a link to those covers that sound similar or identical?

 

[Vitet]

She doesn't have any legal grounds most likely

No, You Don’t Own Your Arrangement of That Hit Song - Romano Law

A guitarist contacted me recently. He creates arrangements of popular songs and puts the PDFs of the music for sale on his website. The first thing I asked him is whether he got permission from the copyright owners of the songs to post his arrangements, being pretty sure he hadn’t. He was...

ostrowesq.com

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Yes. but you can negotiate a license with the original author and get some compensation. I did this myself with some official arrangements of a singer I did some time ago.

In this case if she negotiated this with the original author would be key to know, but I'm assuming she didn't and only get a generic mechanical license.

 

[upinsmoke]

A lot of bad faith posting in here from folks

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Parasitic behaviour that has become common place unfortunately due to the success of a developer.

 

[Kiekura]

It's not irrelevant, it's the one way she could argue to be compensated for this. This is a new cover which was cleared by the original artist's publisher. They did not use Lotte's performance, so unless ND was using a rendition with new musical arrangement/lyrics that Lotte created (and that doesn't appear to be the case) she isn't entitled to anything.

A lot of bad faith posting in here from folks with no music industry or legal knowledge. The creative agency responsible for this trailer and PlayStation's legal counsel definitely did their due diligence before approving this ad and running it on broadcast television.

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Thank you.

 

[Chaystic]

It wouldn't be the first time, they already did it with UC4 by using Assassins creed Black flag stuff.

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That was just a placeholder that they forgot to replace and it was 1 image of concept art, don't say "stuff" as if they used alot of things from that game.

 

[NekoNeko]

She doesn't have any legal grounds most likely

No, You Don’t Own Your Arrangement of That Hit Song - Romano Law

A guitarist contacted me recently. He creates arrangements of popular songs and puts the PDFs of the music for sale on his website. The first thing I asked him is whether he got permission from the copyright owners of the songs to post his arrangements, being pretty sure he hadn’t. He was...

ostrowesq.com

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This guy wanted to sell his take on the songs without permission which he clearly can't but that doesn't mean that anyone who license the song officially can use his stuff imo. But i'm not sure.

 

[ZeroX]

Consider this: many people are brushing her off because her claims have no merit and she owns nothing.

Maybe some people too readily believe their least favorite game company is acting maliciously.

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lol nobody was on Fox's side when they pulled this same stunt, don't try and claim it's people just doing it to go after ND. And I say this as a person who has bought every ND game from Crash 1 onward including every remaster and remake.

it's completely fine to call out companies for their shitty behavior like treatment of staff or stealing assets from others, even if it is legal. and yes ND is bigger so they're going to get it more, as they should (although in case obviously it was probably more Sony's marketing).

again not about the law. just a dick move.

 

[Deleted member 9584]

People are saying they paid the original owners of the song, but are you ignoring the fact that she pointed out they lifted one to one the original compositions she put in her version (and is copyrighted)?

I get they paid the original writers, but they DID plagiarize the original melodies in a cover of that song and they did not seek permission from that copyrighted cover that had unique melodies in it (that they lifted identically).

 

[Deleted member 46489]

She doesn't have any legal grounds most likely

No, You Don’t Own Your Arrangement of That Hit Song - Romano Law

A guitarist contacted me recently. He creates arrangements of popular songs and puts the PDFs of the music for sale on his website. The first thing I asked him is whether he got permission from the copyright owners of the songs to post his arrangements, being pretty sure he hadn’t. He was...

ostrowesq.com

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This. The ethics here are debatable, but she has no legal standing here. As long as the original copyright owner of the song has given their permission (and I'm pretty sure they have), there's nothing she can do. The reason she's posting this publicly instead of privately contacting ND or Sony is probably because she's explored her legal options and knows that she can't get anywhere. This is her "publicly shame the company into submission" strategy.

WIll it work? It depends on how much traction her tweets get. Right now it doesn't seem like those tweets are going viral at all.

 

[Night Hunter]

yeah look it's not illegal, it's just an asshole move. it should be called out as that.

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That's where I'm at. If only for the last few seconds of the ad. She might not have a case from what I've read the last few pages, but honestly, what could it cost to come to some form of agreement here that makes everyone happy. It's five seconds of a cover, used in a trailer. Send her a TLoU Part II PS4 bundle, toss in the first game if you're feeling generous, be done with it.

 

[Ikuu]

ND certainly has a history of this happening.

 

[Aether]

Some people here realy have no clue:
the album with here cover is getting sold through Amazon, so it is a comercial product, and with that she had to get the rights for the original song to cover it.
Her cover made adaptations, with that it is a transformative work that builds upon the original, and with that, its ilegal what they did.
The version that sony made is clearly taken from her version, so the Original Artist AND she have to be credited as artists, and should be compensated.

Its not hard to see: style/key are as her version, aditional vocal parts are there with the same melody.
What i asume: the person that made the cover for sony oriented her version on hers, and the lawers had the work to secure the rights. they where not aware that this is a cover of another version and just licensed the rights to the original. Probably a oversight in communication. Sony/ND should just react, renegociated her part of the licensing fee, and credit her, next to the original artists.

It happens.


I know, for a lot of people covers are just a "silly youtube thing", and you dont have the rights to a cover... btu a cover is an arangement, and if the arangement differes from the original significantly enough, it counts as its own composition. Otherwise artists like alien ant farm(smooth criminal) , Gary Jules (mad world, a good comparison), etc would never had gotten the money they have on licencing.

Edit: if she never payed for a licence for the original cover, then all of this is null and void. But since the music industrie, and EMI (as far as i know new orders label?) are really good in getting these things, i would be confused how her version is being solt legaly then... so yeah, she probably cleared the licence.

 

[alexbull_uk]

Do you have a link to those covers that sound similar or identical?

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https://www.youtube.com/watch?v=l2EUIUAS-MU This one is the near identical one

True Faith - New Order (cover) Anthony Murphy

This is a song from Manchester based band New Order. Formed from the remaining members of Joy Division after the suicide of Ian Curtis. The song is from th...

www.youtube.com

https://www.youtube.com/watch?v=FueanVaAqy8
https://www.youtube.com/watch?v=VcKTPwOMnzU

New Order - True Faith (ukulele cover)

New Order's rise from the ashes of Joy Division after Ian Curtis' suicide was a pleasant surprise back in the day. While usually a lot less dark than Joy Di...

www.youtube.com

 

[.exe]

It may be fine from a legal standpoint but it doesn't feel right. Seems kinda shitty.

 

[NoUse4AName]

This is not the first acoustic performance from Ashley for The Last of US 2 this one if from PSX 2017

https://youtu.be/0cI4Xg2JDMQ

 

[ghostcrew]

People are saying they paid the original owners of the song, but are you ignoring the fact that she pointed out they lifted one to one the original compositions she put in her version (and is copyrighted)?

I get they paid the original writers, but they DID plagiarize the original melodies in a cover of that song and they did not seek permission from that copyrighted cover that had unique melodies in it (that they lifted identically).

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Doesn't matter. She is not the rights holder of the composition. A bass player in the original recording can write a bass solo and still not legally have any rights to the composition.

She didn't write the song. She recorded a performance of it. If they don't use her performance then the only people Sony have to do a licence deal with is the songwriting rights holder (or, more specifically, their publisher).

 

[SubvertedTrope]

lol nobody was on Fox's side when they pulled this same stunt, don't try and claim it's people just doing it to go after ND. And I say this as a person who has bought every ND game from Crash 1 onward including every remaster and remake.

it's completely fine to call out companies for their shitty behavior like treatment of staff or stealing assets from others, even if it is legal. and yes ND is bigger so they're going to get it more, as they should (although in case obviously it was probably more Sony's marketing).

again not about the law. just a dick move.

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No one was on their side cause the ripped off artists actually did something worth ripping off, she didn't write anything unless you count the humming and again I ask, how do you spell out humming in writing?

I agree with calling out mistreatment of staff but I don't see where they stole assets from anyone here, she has no assets. It's not her asset to be stolen.

 

[Tregard]

Don't think there's anything the artist can do on this one.

I say this because I remember when Glee did Baby Got Back, but they outright ripped off Jonathan Coulton's arrangement of it. Pretty damn blatantly, too.






From Jonathan himself giving an update on the situation,




If that one's fine by a legal standpoint, no way that this one isn't too.

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Was gonna bring up the "Jonny C's in trouble" thing too, seems like a unwinnable position

 

[Lyng]

Doesn't matter. She is not the rights holder of the composition. A bass player in the original recording can write a bass solo and still not legally have any rights to the composition.

She didn't write the song. She recorded a performance of it. If they don't use her performance then the only people Sony have to do a licence deal with is the songwriting rights holder (or, more specifically, their publisher).

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Its really not as clear cut as you are trying to make it out to be. The posted example of Pink Floyds Great Gig in the Sky pretty much solidifies that.
Some would argue that she was simply used as a instrument, given that there is no written words in that song.
Nevertheless she did end up getting compensated, even though she was credited from the beginning.

Now this is in relation to your example with the bass player, and why I think it does not really work in regards to the situation between Lotte and ND.

Lotte didnt create the original work and was no part of the original work.

 

[Deleted member 15447]

If she genuinely thought she had a case she would have made contact through a lawyer and not social media.

Pretty obvious why she went the social media route.

 

[Exist 2 Inspire]

I hope Naughty Dog sees all this stanning.

 

[Deleted member 46489]

People are saying they paid the original owners of the song, but are you ignoring the fact that she pointed out they lifted one to one the original compositions she put in her version (and is copyrighted)?

I get they paid the original writers, but they DID plagiarize the original melodies in a cover of that song and they did not seek permission from that copyrighted cover that had unique melodies in it (that they lifted identically).

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See, that's the problem. Her version is a derivative work, and as such she owns NO COPYRIGHT to it. Not even to the original compositions she put in there. And if there's no copyright, there's no case.

I'm not sure if they actually did plagiarize her version, but if they did, this is definitely ethically wrong. Legally, though, they're in the clear.

 

[Adult Contemporary]

This is not the first acoustic performance from Ashley for The Last of US 2 this one if from PSX 2017

https://youtu.be/0cI4Xg2JDMQ

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Oh no, David Pajo is going to demand compensation now.

 

[Deleted member 68874]

That was just a placeholder that they forgot to replace and it was 1 image of concept art, don't say "stuff" as if they used alot of things from that game.

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For the Last of Us they stole a unofficial map of the Boston subway system that was copyrighted.

Last of Us Map

So it's not just UC4 where they've had this problem.

 

[Arthands]

This is essentially the classic tale of a big company taking advantage of a small poor indie worker