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

[ZeroX]

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.

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Lol no one was on their side because it's a shitty thing to do from FOX who nobody wants to stan for, whereas here it's a very different, more popular culprit (although again it's probably Sony's marketing).

And again, I'm not talking about the legality of it. It's copied from her regardless of whether or not you can write or copyright humming. It's a dick move.

 

[Deleted member 23046]

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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While I understand her doubts and complaint, the question is also to know if it's a steal or not, because it's true that humming are similar, for the rest of the song, ask hundred neo-folk singers to adapt that song and you will have 91 similar covers.

 

[Ragaar31]

When this happened to Jonathan Coulton he didn't get anything out of it. And his cover was so vastly different from the original, it was painfully obvious.

I've always held a grudge against Glee for it. Never bothered watching the show even when friends recommended I'd like it.

 

[Possum Armada]

They should compensate her as it includes her original additions. Support artists.

ND needs to do a better job with this as it keeps happening.

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This right here. The vocal part starting at :50 in the ad is straight up lifted from Kestner's piece. It was probably an oversight, but one that could be easily fixed by paying her a small sum of money and offering her work on a future project.

I've followed her work for many many years and have met her numerous times. She always struck me as a reasonable person and ND really should take care of her. Legal case or not, a massive studio should still respect artists.

 

[nib95]

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

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Pretty interesting. Initially I suggested they should still compensate her, but this muddies the water, as who do they exactly compensate when others could also lay potential claim with covers that fall under similar contention?

 

[Zem]

Something like this seems to happen in each ND game. They need better checks or something.

 

[ghostcrew]

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.

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Great Gig in the Sky is a completely different case. That's the main vocal melody on an original recording. She literally wrote and recorded the vocal part of the song, including the melody. She improvised it in the studio and then later realised that they'd used her takes without giving her any rights of the songwriting/publishing. She sued and successfully won.

This is a cover. Like any other cover version. The tiny bit at the end that she has added isn't enough to give her any rights to the songwriting of the track and this wouldn't make it to court.

 

[VegiHam]

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.

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But other posters and the artist are saying it does sound similar? Doesn't seem entierly clear cut.

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.

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You could write it on sheet music I guess? The point is she added it and whoever was responsible for its inclusion in the trailer copied her.

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.

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Right, I guess I'm just sceptical that they had the same idea for the humming independently. Seems way more likely to me that they heard her version and copied it.

 

[Lyng]

Great Gig in the Sky is a completely different case. That's the main vocal melody on an original recording. She literally wrote and recorded the vocal part of the song, including the melody. She improvised it in the studio and then later realised that they'd used her takes without giving her any rights of the songwriting/publishing. She sued and successfully won.

This is a cover. Like any other cover version. The tiny bit at the end that she has added isn't enough to give her any rights to the songwriting of the track and this wouldn't make it to court.

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Yes I clearified my comment. It was actually meant to say that your example of a bass player not owning rights to his solo is not as clear cut given the Pink floyd situation.
And thus is a completely different situation than that of Lotte vs ND.

Also there are no words in The Great Gig in the sky. Her performance is pretty much a voice solo, and she was credited on the original album.

 

[Vitet]

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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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.

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Not true, as someone already posted besides me, you can negotiate a percentage along with the permission of the original author and copyright your own arrangement. They can just refuse also, of course.
And if that bassist want, he can also negotiate a percentage with his companions if all them think his work is part of the composition and get some copyright revenues too.

What we don't know is if she did that, she just asked for a mechanical license (already negotiated by musical copyright agencies) or just didn't ask for permission.
The first one could give her some protection and copyright revenues when someone uses her arrangement, the second one (most likely) would put her on no legal basis to ask for anything. The third case is not likely as she has distributed her album and labels usually check with the original authors always, but who knows.

 

[dodo]

It feels pretty obvious to me that the cover in that trailer is based on her cover. Like, to go for a really easy example, you'd know instantly whether or not someone covering Hurt was basing their version off of the Cash version, lol. It's not something you can really play dumb about, even if you can claim it's a cover of the original and not another cover. It's like tracing fan art.

no idea what sort of actual legal grounds she has here, but regardless it's definitely a shitty situation for this artist.

 

[skiibot]

At first, my immediate thoughts were that it could be coincidental. Elles guitar is pretty prominent in promotional material (and presumably will also appear in some capacity in game) so it would make sense they would do an accoustic cover of a song. You could also see how if they decided to do a cover of any popular 80s track, there probably would be at least one person who's done the same thing before. Even a melancholic tone wouldn't surprise me, consideringthe tone of the game but just also because popular media really loves its melancholic covers of tracks for their promo material.

That said, it's clear Lotte had an entirely different arrangement than the original, to the point where really only the lyrics clues you into the track its covering. The fact TLOU II's trailer is near identical to it therefore tells me that shes probably right, and they likely did plagiarize it.

I don't know what can be done about this, but I hope she does get compensated for it.

 

[alexbull_uk]

Pretty interesting. Initially I suggested they should still compensate her, but this muddies the water, as who do they exactly compensate when others also could also lay potential claim? Seems there may be other covers that fall under this kind of contention.

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Yep, there are a lot more on YouTube than posted, and honestly these kinds of covers (slowed acoustic) are absolutely everywhere, for nearly any song you can think of.

 

[Deleted member 25128]

Pretty sure he/she's been sarcastic.


Maybe that was the fastest/guaranteed way to get their attention.

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Or the fastest way to get internet attention and more album sales?

Seems there are multiple points going on here, but...

The original artists are the ones that would be licensed and paid. If all the words are the same and all they have done is change the order of sentences, I dont think you can claim "they stole my work".. its not really your work. Its new orders work. As for slow music, to be fair, I think any artist who makes an acoustic slow version would have sounded much the same. So now the argument is that it sounds like her work, but its not really her work, yes its probably a little annoying, you made a cover of someone else's work and someone has released a slow version that sounds like your work, which isn't your work, its someone else's... im getting all dizzy... spin me right round baby right round.

 

[Puffy]

I guess what this boils down to is "should she be credited for the humming at the end? "

 

[Deleted member 2791]

A judge weighing on the case would probably have to determine if the cover from the lady is different enough from the original to have acquired a distinct personality, and thus requiring licensing from someone else to cover it for commercial purposes, the same way you'd need two licenses to mash up or sample two different songs.

 

[ghostcrew]

Not true, as someone already posted besides me, you can negotiate a percentage along with the permission of the original author and copyright your own arrangement. They can just refuse also, of course.
And if that bassist want, he can also negotiate a percentage with his companions if all them think his work is part of the composition and get some copyright revenues too.

What we don't know is if she did that, she just asked for a mechanical license (already negotiated by musical copyright agencies) or just didn't ask for permission.
The first one could give her some protection and copyright revenues when someone uses her arrangement, the second one (most likely) would put her on no legal basis to ask for anything. The third case is not likely as she has distributed her album and labels usually check with the original authors always, but who knows.

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Of course you can negotiate that.

Presumably Lotte didn't. There's no way New Orders publishers would give her a percentage of the songwriting credit for the few seconds of humming in the middle eight. And, if they did, she'd presumably be going through the proper channels (with a publisher) to dispute this rather than a shout out on Twitter and a link to her Bandcamp.

I feel bad for her and, for the record, I think she's got a right to be annoyed and I think she's totally right to call it out on social media. It's shitty. But Sony didn't need to get her permission to record a cover of a New Order song.

 

[addik]

Right, I guess I'm just sceptical that they had the same idea for the humming independently. Seems way more likely to me that they heard her version and copied it.

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I definitely understand and I wouldn't be too surprised either if it turned out that way too, and while she probably has no legal standing, I do hope she takes it far enough to get Sony to meet some of her demands if that is the case. Just based on my experience with the industry and with the general trends in the independent music scene in the last few years, it's probably more like it's because they just went for the same style independently of each other.

 

[Puffy]

I will say if she was able to get humming copyrighted in an acoustic cover, she's a genius

 

[VaanXSnake]

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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They still did it and they even apologized for it, that's just how it is

 

[Bundy]

To be fair to them, I assume they didn't actually create this trailer. It'll be outsourced, surely?

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Yep. Pretty sure this is on Sony (marketing team) and not Naughty Dog. Let's see how this goes.

 

[SinkFla]

It's a cover.

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Yeah I'm confused lol. I know you need explicit permission from the copyright holder to utilize/release a cover for profit but this weird. I didn't think you could copyright a cover as the cover artist does not own one to a work they did not create.

I'm pretty sure if the original artist/copyright holder gave ND permission then the cover artist can't really say shit.

 

[Phellps]

The marketing team behind this probably checked it and concluded they were clear to use this from a legal standpoint. So nothing will come out of this most likely.

 

[texhnolyze]

She probably doesn't have any legal stand on this, but still, she deserves the credit (which she demands on the tweet).

Are you guys still against that idea?

 

[Rabalder.]

Wouldn't be the first time ND have done something like this.

 

[DealWithIt]

So, I'm sympathetic, but, US copyright protections extend to the right to make derivative works. Not sure her cover is protected in this case unless she got a license from the original artist when she did a cover. Her cover is likely a derivative work, likely not entitled to protection without an agreement from the original rights holder

 

[Deleted member 46489]

Not true, as someone already posted besides me, you can negotiate a percentage along with the permission of the original author and copyright your own arrangement. They can just refuse also, of course.
And if that bassist want, he can also negotiate a percentage with his companions if all them think his work is part of the composition and get some copyright revenues too.

What we don't know is if she did that, she just asked for a mechanical license (already negotiated by musical copyright agencies) or just didn't ask for permission.
The first one could give her some protection and copyright revenues when someone uses her arrangement, the second one (most likely) would put her on no legal basis to ask for anything. The third case is not likely as she has distributed her album and labels usually check with the original authors always, but who knows.

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Technically, sure, but if we're going by technicalities, she could've even negotiated that the copyright owner wholly assign her the copyright to the original work. Anything can be negotiated.

If she actually had any kind of legal rights out of such a negotiation process, she'd be sending Naughty Dog a legal notice, not complaining about it on Twitter.

 

[tzare]

I don't know if she deserves anything, this is a cover of someone else's work afterall, as thousands others.
It would be nice that ND did something, i guess. But why use Twitter instead of talking directly to ND or whoever is responsible of the ad? (I mean, there are people that are paid for creating ads, and those should be the ones responsible by doing their work properly i guess)

 

[Deleted member 25128]

She probably doesn't have any legal stand on this, but still, she deserves the credit (which she demands on the tweet).

Are you guys still against that idea?

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Against what idea? What exactly has ND stolen? I'm still very confused by this, some people are saying she hasn't actually added any new content to the song, just sung it in a different order and that ND have done a version that is similar to her version? First I think we need to understand what is different about her version and the original. If she has written verses of new content that they have taken I would agree, but if its just the same song, the credit is new orders, not hers.

 

[Wallace Wells]

I don't know if she deserves anything, this is a cover of someone else's work afterall, as thousands others.
It would be nice that ND did something, i guess. But why use Twitter instead of talking directly to ND or whoever is responsible of the ad? (I mean, there are people that are paid for creating ads, and those should be the ones responsible by doing their work properly i guess)

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By calling them out on Twitter it means the story gets more traction than if she was to just do it privately

 

[Ombala]

This is ridiculous, she made a cover and there are many other covers like hers.
Good luck trying to make a case that the girl singing in the video made a version of her son and not just a version of the original.

 

[Cyberclops]

I don't know why people are reducing Lotte's original work to just humming. It's a melody, which makes it the same as a guitar riff.
Given that there is no legal standing, I think Sony/ND could be really cool people and acknowledge and give credit to Lotte without the threat of being sued. Obviously there's always the chance of coming up with the same melody independently but I've seen cases won with less evidence.

 

[Shairi]

It would be nice if the PlayStation YouTube channel could credit her under the ad, because I don't think the song is part of the game.

But yeah, legally they aren't obliged to do anything.

I hope they can work something out

 

[Velg]

I mean... it's a cover. And the style isn't exactly unique. There are soooo many slow acoustic versions of songs out there. Anyway, Sony would've paid a license so sucks for her but don't see what her options are.

 

[Omnistalgic]

Did she really have to make it public in a tweet?
Couldnt she have called/emailed/contacted them first?

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She's clearly heartbroken...

 

[Mathiassen]

The vocal tone and rhythm are exactly the same. She should get credited and compensated for not being credited in the first place.
Playing the legality of it is a losing game at this point.

Other covers posted in this thread are far from similar, just stop.

 

[texhnolyze]

Against what idea? What exactly has ND stolen? I'm still very confused by this, some people are saying she hasn't actually added any new content to the song, just sung it in a different order and that ND have done a version that is similar to her version? First I think we need to understand what is different about her version and the original. If she has written verses of new content that they have taken I would agree, but if its just the same song, the credit is new orders, not hers.

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Huh, who said anyone has stolen anything? What's with the so defensive stance?

I was suggesting something pretty light like a mention in the description and/or caption of social media. "Here's a trailer featuring a cover song from Lotte Kestner." That would be more than enough to give her the boost he probably needed badly. No stealing, no compensating, just a credit.

 

[Damn Silly]

I'm guessing if nothing happened when Glee did it with Jonathan Coulton's Baby Got Back cover (included the Jonny C's in trouble line ffs), there's probably nothing there from a legal standpoint.

Not that it isn't shitty from Sony/Naughty Dog though.

 

[ghostcrew]

She probably doesn't have any legal stand on this, but still, she deserves the credit (which she demands on the tweet).

Are you guys still against that idea?

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I both think she has no legal ground to stand on but also think she's totally right to call them out on social media and it'd be good of them to acknowledge her cover version and give her work a little boost. It's a shitty situation.

Basically would give her tweet a thumbs up and a retweet but think people instantly jumping to 'CAN SHE SUE?!' are jumping the gun a little seeing as she hasn't suggested that at all (and presumably knows she couldn't).

 

[Serein]

I don't know why people are reducing Lotte's original work to just humming. It's a melody, which makes it the same as a guitar riff.
Given that there is no legal standing, I think Sony/ND could be really cool people and acknowledge and give credit to Lotte without the threat of being sued. Obviously there's always the chance of coming up with the same melody independently but I've seen cases won with less evidence.

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Yep. Even if she isn't entitled to financial compensation she should at least be acknowledged as a professional courtesy from one creative to another.

 

[Zeouter]

It seems like ... it's too close or coincidental.
Hopefully they can make amends if true.
Maybe some form of addition to the credits? A charitable donation?

Somewhat nebulous waters, but doing something positive would be the right solution in my mind.

 

[EJS]

Huh, wasn't it last week that another artist spoke out against ND about her tattoo design for Ellie being the faceplate of the new PS4 Pro?

 

[Deleted member 5028]

Something like this seems to happen in each ND game. They need better checks or something.

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Unrelated, but given the number of people who cycle through that studio (per previous articles) it would probably be easy for some contractor to use something assuming it's fine and then it slips into the net and nobody with previous knowledge of earlier incidents around to remind them to vet more.

 

[scrambledeggs]

Huh, wasn't it last week that another artist spoke out against ND about her tattoo design for Ellie being the faceplate of the new PS4 Pro?

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I believe she was hired by ND to design the tattoo. She wanted to be credited when they revealed the faceplate for the TLOU2 PS4 Pro bundle I suppose. I do recall Neil crediting her for the tattoo and being Ellie's hand model in the TLOU2 reveal trailer after it dropped.

 

[tzare]

By calling them out on Twitter it means the story gets more traction than if she was to just do it privately

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Sure, it doesn't seem the most adequate way of dealing with this 'problem' , i think the correct would be contacting them directly, and only using social media is they ignored you.

 

[EJS]

I believe she was hired by ND to design the tattoo. She wanted to be credited when they revealed the faceplate for the TLOU2 PS4 Pro bundle I suppose. I do recall Neil crediting her for the tattoo and being Ellie's hand model in the TLOU2 reveal trailer.

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Right - I think she wanted some exposure because she was looking for work. I don't blame her.

 

[NoUse4AName]

Is an acoustic cover ...just like they did on 2017 with that Jhonny Cash Song.

That's it .

 

[jett]

What if they took inspiration from multiple covers? Should they credit the cover of a cover while doing a cover?

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You're being disingenuous. The arrangement in the video you posted sounds very different from what Kestner made and what ND used.

 

[Dyle]

She doesn't need to be paid for it, she should be but such is copyright law, but she should be credited or acknowledged in some way. Given the studio's track record on this issue it's impossible to say it's just a coincidence.

 

[Siresly]

You don't have to be sued into doing what's right. Even if this isn't actionable from her end, or somehow wasn't intentional on Naughty Dog's, they should do something to try to solve the situation in an amicable manner. There's surely some sneaky way of doing that that doesn't open Naughty Dog up to potential legal nonsense down the road.