A Perspective On The Complexities Of Copyright And Creativity From A Victim Of Infringement

from the rethinking-creativity dept

Erin McKeown, a wonderful musician who has been very involved in some discussions on copyright and internet access — and who was especially helpful in the fight against SOPA — recently wrote the following thoughtful, heartfelt piece concerning the emotional roller coaster of having someone copy your work, and how all of this relates to copyright law.

I always knew my song “Slung-lo” was a hit.

It just took longer than I expected.

“Slung-lo” came out on my 2003 album, grand (Nettwerk). It found its way to the Brittany Murphy masterpiece “Uptown Girls” and into episodes of “Roswell”, “Gilmore Girls”, and “Privileged”. It also found its way into a Tesco F&F commercial, which ran in the Czech Republic in the summer of 2008. Though not a hit by any means, it was a remarkably long life for a song that came out in 2003.

And then last year, I received two separate emails through my website pointing me to this video for a song called “Touch The Sun” sung by the Czech artist, Debbi. (editor’s note: we tried to embed the official video for this song, but Sony Music refuses to allow an embed on the song).

“Have you seen this?” both emails asked. I hadn’t.

From the first moment I heard “Touch The Sun,” it was as clear to me as anything that someone had taken the DNA of my song “Slung-lo” and turned it into another song. At this point, my lawyer wants me to make very clear that IN MY OPINION, THIS IS COPYRIGHT INFRINGEMENT.

If you want to hear my song again, here’s “Slung-lo” on YouTube or you can click here for a free download from me.

I don’t want to spend a lot of time technically breaking down the two songs, but I’d like to point out a few things. Among the many substantial similarities between them, check out the lyrical content (weather as metaphor for happiness), the almost exact song structure (solo verse, band verse, double-tracked vocal in the chorus…), and the vocal cadence in unison with the descending instrumental line in the chorus. I could go on.

Debbi’s “Touch The Sun” isn’t the proverbial “kid in the bedroom with a laptop” who remixes pop culture and makes mash-ups to show how alike we humans really are. No, it turns out the song was written for a commercial scale beer campaign by the giant European alcohol company Metaxa, which itself is a subsidiary of the global beverage conglomerate Remy Cointreau.

And it is a hit. A huge one. Debbi was the runner up on the Czech version of the “Idol” franchise. The song won “Song of the Year” at the Czech version of the Grammys. The original video that was sent to me has almost a million hits. A quick search of YouTube reveals karaoke versions, animations, “how to play versions,” and plenty of people in their bedrooms playing the song and singing along. The beer ad with the song aired across the Czech Republic more than 1200 times in September of 2010. That’s about 40 times a day.

So, after all this time, “Slung-lo” is finally a hit.

The easy part of this story is that I work with an amazing publishing administrator, Duchamp, who has stepped in to help me. We’ve retained Czech council who have been in contact with Metaxa, Debbi’s record label (Sony!), and the Slovak production house that produced the track. All have denied any infringement, declined to settle, and at this point, court proceedings have started. My lawyers estimate that this could take anywhere from one to five years.

This spring Remy re-launched the ad campaign across all of Europe.

By the way, the writers are Tomas Zubak, Peter Graus, and Maros Kachut. Let’s #kony2012 them.

Actually let’s not.

Instead, I want to talk about the whole host of emotions this experience has brought up for me, and the way it’s forced me to confront and articulate my beliefs about copyright.

After watching the video for the first time, I was certifiably apoplectic. I was physically shaking with anger. How dare they! I wasn’t so much angry at Debbi — who, from what I eventually read, really just sang the damn thing — as I was at the writers. They had to know what they were doing, I fumed. I mean, the song was just in a commercial there. They had to know about it. How dare they!

And then I felt small. I’m nobody, I thought, so they probably figured they could get away with it. It’s not like they ripped off Beyonce. Just small-time me.

And then I felt defeated. I’ve always wanted to have a hit like “Touch The Sun”. And I thought I wrote one in 2003. It was such a great disappointment to me that no one noticed. There will never be enough people to notice me, I thought.

And then, I would find myself dreaming. Maybe I’ll get a settlement. Maybe it will be large enough to make all my problems go away. I’ll be able to pay for my new record. I’ll be able to afford the best marketing and publicity money can buy. And then there will be some left over to buy a house. My life will change!

Finally, I disconnected. I couldn’t tell very many people about what was happening, and the feelings were overwhelming me. Ok, I thought, I’ll just let the lawyers do their lawyer thing. This is why you pay them. I am powerless. Breathe deep and exhale.

Very early in the process, my lawyers asked me what I wanted to be the goal of my settlement. Did I want 100% of the money made? Did I want a flat fee? How much? Did I want a public apology? Did I want to let it go? Did I just want credit?

These questions became a spiritual exercise. I began to think that how I answered them said something about who I was as a person.

I believe that creativity is an unpredictable, mysterious process. I often have no idea where a song comes from. Other times I am more aware of the hard work. It is not always an easy thing to know where influence ends and mimicry begins. But there is also a way we recognize ourselves in the faces of our children, and a gut instinct that tells me when I am hearing my own musical fingerprint.

I thought for awhile, and decided I would like 50% of all the monies made so far, and 50% on everything moving forward. I didn’t need a public apology. I think this is fair, not punitive, and given the current copyright law system and options available to me, a reasonable request.

Now I just have to wait one to five years to see how it turns out.

Recently, I’ve ended up doing a lot of advocacy and policy work around copyright. This isn’t because I am a copyright crusader, for or against, but because the issue gets tied up with so many other things I care about: media access, fair compensation for artists, creating a sustainable music business.

I actually hate to talk about copyright because, once it’s brought up, it just seems to take over any conversation. Most of the time I feel like that conversation then becomes counterproductive. People throw around complex legal principles. The jargon resembles a foreign language. Often, the emotions get so heated that a room ends up divided at just the time when we need to work together. I’ve also noticed that most of the people crowing about copyright aren’t individual copyright holders. They’re groups of people who make money from the business of policing and administering copyright.

In my advocacy, I want to talk scale. I want to talk relationships and power structures. I want to talk about technology. Copyright is part of this, but it’s not the whole enchilada. I’ve come to think that current copyright law is like an immovable boulder in the middle of a rushing river. It’s not likely to change, so I’m going to have to work with it, as it is. And not let it stop other important work.

Yet here I am facing a difficult situation where copyright is the main issue.

I recently watched Kirby Ferguson’s “Everything Is A Remix” series and found it really helpful to understand the feelings that came up for me around “Touch The Sun.” In part four, Kirby makes the observation that we humans are easily and freely influenced and inspired by the world around us. However, when we feel like something has been taken from us, we get very angry and indignant. Our anger is as natural and essentially human as is our borrowing or being influenced.

Really how I feel about copyright is this: can you please just ask me? I am so easily found. One or two clicks, a badly mangled combination of “erin” and “mck” will get you to me. Let me know what you’re doing. Let’s talk. Take some time and connect with me. I know this is imperfect. Sometimes in the creative economy, there just isn’t time. But how about we try?

I’d also like us all to acknowledge that the current copyright system, the unmovable boulder in the stream, rather than protecting rights holders and acting as a deterrent to infringement, is in its very complications a shelter for those who use others’ material without permission and an obstacle to those who would like to legally use or remix content. Whether it is done consciously or unconsciously, nefariously or in communal bliss, given the complicated, arcane process, the myriad hoops to jump through, the length and cost of the process, who can afford to participate?

So Tomas, Peter, and Maros, I won’t assume your motives in turning my song “Slung-lo” into “Touch The Sun.” Instead, I’ll say this: if you asked me, we might have worked something out. When I found you, we might have worked something out. Who knows, maybe we could have advanced the conversation around copyright and made a radical contribution toward a different type of economy. Instead, it will drag on in court. And I will fight it in court as long as I have to. But this could have gone another way. And for that, I am sad.

Erin McKeown is an internationally known musician, writer, and producer, releasing 8 full length albums in the last decade and spending an average of 200 nights a year onstage. She has appeared on Later with Jools Holland, Late Night with Conan O’Brien, NPR, BBC, and has had numerous film, television, and commercial placements. She’s even written a song via text message with her friend Rachel Maddow. Lately, she has added mentor and activist to her resume. She is a board member at the Future of Music Coalition and a 2011-12 fellow at the Berkman Center for Internet and Society. Visit her website www.erinmckeown.com for more info and to join her mailing list.

Special Thanks to Mike King, Andy Sellars, my lawyers, Lawrence Stanley and Vaclav Schovanek, and Erik Gilbert at Duchamp for their help researching and proofing this post.

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Comments on “A Perspective On The Complexities Of Copyright And Creativity From A Victim Of Infringement”

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Anonymous Coward says:

Stop the lawsuit now and get to work.

Today I had to get up and go to work to earn my money. I worked back in 2003 also, but nobody is paying me for that work today. Why should they pay you?

Did you contact everyone who inspired your song? Who you copied from? No? So why should you expect them to contact you? All creations are fundamentally derivative; yours is not special.

If a “copy” of your song really is a huge hit and you can’t figure out how to monetize that, whose fault is it? Go start working out a tour in Slovakia and wherever else your song and its “copies” are popular. Sell some merch while you’re at it. You have a huge opportunity to capitalize, but instead you’re conspiring with bloodsucking lawyers to stifle someone else’s creativity. The only ones who will win that battle are the lawyers. Your lawsuit is hostile to the very people who might someday pay you: your fans. If they’re fans of a “copy,” surely they will also be big fans of the original.

You have a secondary advantage many artists do not: you can claim to have been wronged by a big corporation (even though their “copying” of your song is actually huge free publicity). As anyone here at Techdirt can tell you, controversy and righteous indignation can be used to drive sales in a big way. That makes buying an Erin McKeown shirt more than just a fan’s purchase: they are now supporting a “cause!”

Don’t waste this potential! Get planning!

Suzanne Lainson (profile) says:

Re: Re:

Today I had to get up and go to work to earn my money. I worked back in 2003 also, but nobody is paying me for that work today. Why should they pay you?

Here’s perhaps a better work example.

You have an idea and tell it to a co-worker who then tells your boss it’s his idea and he gets promoted because of it and you don’t. Unfortunately that sort of thing happens enough that office politics are perceived as a generally nasty business.

ChrisB (profile) says:

Re: Re: Re:

> mean subtlety threshold

Maybe. But I just want to weep when I read “Instead, it will drag on in court. And I will fight it in court as long as I have to.” Are you kidding? The only people making money are lawyers.

Why don’t you make t-shirts that says: “I sing better than this b!tch” and have a picture of Debbi with an X thru her. Put your track up for sale on iTunes and link to Debbi’s song and say, “Hey, you heard the copy, now get the original!” Put it on Youtube and get some ad revenue. Whatever you do, don’t “poor me” in the corner as your lawyers waste money. This is free advertising and good will, and you’re pissing it away.

We don’t even need to talk about whether this is right or wrong. It just doesn’t matter.

hurricane head says:

Re: Re:

wow, just wow… so mike runs a story of an artist who DID NOT support SOPA, is open minded about copyright policy, and you all just pile on her like a bunch of school yard bullies? Nice… so that’s what the internet community does with artists… you bully and ridicule them?

If mike had any self respect he would jump in here in defense of this artist he invited to post here, sharing her story about how artists are negatively effected, even when supporting many of the philosophies on techdirt.

this is why you all whack. if you ever created any ART of consequence, if you had any respect at all for ART and Artists you would not be attacking someone who has been victimized.

I don’t know how else to say this but what a bunch of childish, immature, uninformed, careless *holes…

carry on tdouche’s…

Dave (profile) says:

Re: Re: Re:

Wow, I don’t usually do personal attacks, but you’re a real jerk. Learn the difference between attacking ideas and attacking people. The post you replied to may have been very direct, but it didn’t attack her. Your post was an attack. Mine too. ‘Cuz I think you’re a jerk.

And not supporting SOPA isn’t special. It’s almost everybody who wasn’t paid to.

Anonymous Coward says:

really? you have copyright on the use of weather as metaphor for happiness in a song?

I guess it’s all sunshine and roses for you from here on out, because you can just spend the rest of your life suing anyone who uses weather related idioms in a published work.

One of the reasons copyright law is such a mess is that people tend to overgeneralize similarities to the point where they are meaningless.

Lachlan Hunt (profile) says:

Re: Re:

> really? you have copyright on the use of weather as metaphor for happiness in a song?

Did you even listen to the two songs? I played them simultaneously and they synced up almost perfectly. They are virtually identical. I couldn’t distinguish between them at all.

Assuming the company really did fail to pay appropriate royalties for the use of the musical score and did just re-record it and try to pass it off as their own, this is a clear and blatant case of copyright infringement and it’s difficult to see how any fair use/fair dealing (or equivalent) defence could be used in this case.

DandonTRJ (profile) says:

I have a feeling that a lot of the usual Techdirt lurkers are not going to receive this post well. But it’s an excellent post. Even as copyright skeptics, we should be willing to admit there is a difference between borrowing bits and pieces versus wholesale slavish copying. The former gains us new works merely using the old ones as a platform. The second is free riding without any substantial contribution to justify the ripping off of the original artist. There is a place in this world for both remixing and copyright enforcement. Let’s not allow disdain of the current system’s overreaches to deny its utility in the truly egregious cases.

Anonymous Coward says:

Re: Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm

Nope. There is no such thing as “free riding.” That’s a concept invented by IP maximalists to justify their restriction of other people’s natural rights. By even using the term you implicitly support their cause.

I can barely bear to look at this article’s title. Infringement “victim?” There is NO victim here, except perhaps the targets of the stated (and frivolous) lawsuit who are victims of attempted censorship.

What was taken from the supposed “victim” here? Nothing. A new song was created. CREATED. Huge potential publicity was created FOR FREE.

Restore sanity. Abolish copyright!

DandonTRJ (profile) says:

Re: Re: Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm

You write a book. I copy the book with only minor tweaks. I market it better than you and profit, your version is crowded out of the market, you abandon ever following up on the work. Fair? I don’t think so. The kind of thing we’d like to encourage in the market? I don’t think so. I know the “free riding” term has been hijacked by Levine and others, but I think it has utility in the discussion despite their lobbyist hyperbole. There are ways to profit off the infringement of your works, true. But I don’t think it should supplant the ability to discourage others from SLAVISH mimicry through the judicial system. Emphasis on SLAVISH. I fully support remix culture, borrowing from prior works, etc. But there should always be a line. Perhaps one set higher than the current stifling one. But a line nonetheless.

Anonymous Coward says:

Re: Re: Re: Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm

You make a pizza. I make a pizza with the same basic recipe and market it better and become a wild success. So I owe you half my money? Hell no!

Artists need to learn to compete just like everyone else. If McKeown did not want her song to inspire anyone she should have kept it to herself. Maybe if she had just done the right thing and put it in the public domain on Day 1, nobody would have needed to make an inspired derivative and she would be in an even better position.

DandonTRJ (profile) says:

Re: Re: Re:2 Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm

You’re comparing the complexity of an artistic work to a pizza recipie? There’s a reason why recipes can almost never be covered by copyright, and it’s the same reason your analogy breaks down; we’re talking about completely different types of “works” with an infinitely greater potential for variation in one. And you continue to conflate inspiration with slavish copying as though they are one in the same. They most certainly are not. I say this as a devoted Techdirt reader – unwillingness to explore a middle ground on these issues is what relegates so many anti-maximalist opinions to wingnutty categorization (and consequentially irrelevance). Let’s not be our own worst enemies here.

AlexNagy (profile) says:

Re: Re: Re:4 Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm

Chemistry can get complex, but not the pizza recipe. To make a pizza unique, the best you can do is change the toppings. You can’t change the dough recipe significantly (whole wheat vs. white flour is about the best you can do) without changing significantly how it rises, cooks and tastes. You can change all the toppings (sauce, cheese, meats, veggies) but basically a pizza is a pizza. The only real creativity comes in changing the toppings.

Quit comparing apples and oranges.

Anonymous Coward says:

Re: Re: Re:3 Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm

You write a book. You market it better. You add a little flare that makes it more readable. You make one character an asshole. Your editor makes sure that the girl doesn’t get saved at the end and instead the epilogue is a heart wrenching depiction of the protagonist’s daily life as he mechanically trods on towards death, to paralyzed by ennui to kill himself.

You win the market. So you make a sequel. We call this capitalism and having a Laissez-faire market, where people don’t muck about with these transactions. You did it better, so you bring home the bacon.

I go to a job interview. I do well. You do the same interview, but add a joke or remove a sad story I used. You get the job. I don’t call it unfair. I don’t sue. I move the hell on and look for a new interview. Because you did it better, or different, or however you had to in order to get noticed. I didn’t. Oh no. Time to move on.

Chris Rhodes (profile) says:

Re: Re: Re: Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm

You write a book. I copy the book with only minor tweaks. I market it better than you and profit, your version is crowded out of the market, you abandon ever following up on the work. Fair?


(But I agree with you that it’s an excellent post, so at least we have that in common.)

DandonTRJ (profile) says:

Re: Re: Re:4 Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm

Ironically, that’s one of the arguments used in the Eldred/Golan cases for putting public domain works back under copyright; they’ll be promoted more if we know we can extract monopoly rents from them!

But really, if a great work really has potential to be huge, copyright should serve to encourage partnership ventures, where no one party gets screwed in the process. Encourage the publicity by granting incentives to lift up the original, so the artist responsible is in a better position to create future works of that caliber. Don’t shortchange the public of the artist’s full potential body of output out of zeal for a completely uninhibited market.

Anonymous Coward says:

Re: Re: Re:5 Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm

Don’t shortchange the public of the artist’s full potential body of output out of zeal for a completely uninhibited market.

There are six billion people on the planet. Six billion cogs in the great machine. Don’t get sentimental over one of them especially when it gets butthurt that other cogs are doing better.

An artist’s full potential will be extracted by his or her needs for food, shelter, and security. And based on commercial success, Zubak and friends are doing a better job at getting those things. The infallible market rewards those who deserve it and give the people what they want. Zubak et al. succeeded. McKeown, less so. Maybe that will motivate her to do better next time, or try her hand at something more productive.

DandonTRJ (profile) says:

Re: Re: Re:6 Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm

For purely utilitarian goods, I would cede the “six billion people” argument. But with artistry, sometimes it’s the one that makes an impact the other six billion couldn’t. We only have one poet Homer. Only one Shakespeare (depending on what you believe about his authorship). One Beatles. This stuff isn’t as fungible as, well, cogs.

Artists’ full potential will be extracted by need only if the market ensures there are some mechanisms that allow them to obtain remuneration and fulfill that need – otherwise, they will likely switch to utilitarian work not affected by the lack of scarcity a purely unregulated market creates for so-called intellectual property. Fundamentally, it stems from the notion of unfair competition law. You have invested in a good to sell. Others should not be able to take that good, add nothing substantial of their own, and thus undercut your ability to function in the marketplace. This isn’t about piracy, which is a completely separate notion with its own unique concerns. Now we’re talking about rival sellers. I feel this is a place where copyright law should be far less controversial than most other facets discussed on Techdirt.

Anonymous Coward says:

Re: Re: Re:7 Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm

Interesting that you mention Homer, who is generally agreed to have at best documented oral traditions that existed long before he did, and Shakespeare, a noted plagiarist. They stood small on the shoulders of giants and yet get all the credit. True IP maximist heroes if there ever were.

The remainder of your arguments have been thoroughly debunked so many times on this very site that it is not worth my time to address them. Please feel free to do some Googling on your own.

TtfnJohn (profile) says:

Re: Re: Re:7 Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm

I doubt anyone’s reading this thread anymore but…

I’d say that copyright, at least the maximalist trends and increasing length of it, is tangential here. McKeown’s sadness isn’t so much in that this has happened but in that the brewery who sponsored the rewrite and somewhat new lyrics chose to fight instead of just share/settle.

And yes, sunlight and the sun are common analogues for happiness and joy in English speaking societies but when it occurs in the same chord progression at the same point in the song one is left with “plagiarism” ringing through the brain. The refusal to settle is as much a part of IP maximalism as is the gatekeeper attitude of the *AAs. If you can’t and won’t adapt in one area you certainly can’t admit you’re wrong when you do it to someone else, deliberately or not.

McKeown’s sadness is that they could have worked it out, done something different, even radically different. Instead two parties are staring at each other over the fence, now, with a judge sitting between them. And that IS sad. Something that got her paid something for her creation, her contribution directly to the song, and allowed the copy to remain in place for the same uses it has now. Now it comes down to I win/You lose which, in the end, is everyone loses.

“I’d also like us all to acknowledge that the current copyright system, the unmovable boulder in the stream, rather than protecting rights holders and acting as a deterrent to infringement, is in its very complications a shelter for those who use others’ material without permission and an obstacle to those who would like to legally use or remix content. Whether it is done consciously or unconsciously, nefariously or in communal bliss, given the complicated, arcane process, the myriad hoops to jump through, the length and cost of the process, who can afford to participate?”

I fully agree with McKeown’s as she outlines them above. Put more poorly it’s not the concept that’s the problem it’s what the concept has become. This is where copyright as a 2 dimensional thing in law fails and fails badly when things, as they do and have these days become multidimensional.

Chris Rhodes (profile) says:

Re: Re: Re:3 Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm

No, it’s a dick move, honestly.

But I’m not willing to use violence to solve it. A good public shaming and some grassroots support for artists would go a long way. Also, I want to go back to something you said:

you abandon ever following up on the work

Why would you do that? It’s easier than ever to spread the truth about who actually wrote the book in question, and if people want more, you’re the only one who can give it to them. That’s when you capitalize on demand.

DandonTRJ (profile) says:

Re: Re: Re:4 Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm

Because the mechanisms you’ve outlined are far less certain to yield the outcome necessary to properly remunerate the wronged artist, and without the knowledge that they have a safety net against unfair competition (i.e. copyright), they may abandon the prospect of being able to self-sustain through their craft. You’re making a great case for less zealous copyright enforcement, or at least fewer wishy-washy claims clogging up the court every time someone feels “ripped off” because the general concepts and basic framework of their product has been co-opted, and I’m right there with you. But I still feel like copyright skeptics (of which I am one!) are being a little disingenuous when they say even blatant cases of infringement shouldn’t have judicial recourse.

Anonymous Coward says:

Re: Re: Re:5 Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm

If an artist gets butthurt and decides to rage quit making art just because someone was inspired by their work, how much of an artist could he/she really be?

In the six billion, there are many others who have true passion and will create in that one butthurt artist’s place.

Anonymous Coward says:

Re: Re: Re:7 Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm

Inspiration specially in music is almost always accidental, people keep playing with it until something sounds good and they record that.

If there was a parametrized way to do music computers would be doing it already, so inspiration is another way to say “hacking” or “thinkering”.

Chris Rhodes (profile) says:

Re: Re: Re:5 Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm

But I still feel like copyright skeptics (of which I am one!) are being a little disingenuous when they say even blatant cases of infringement shouldn’t have judicial recourse.

Not disingenuous, just consistent.

There is no such thing as “intellectual property”, only real property. In light of that, there is no level of violence that can be legitimately used against a person who arranges the bits on his hard drive in a particular fashion or writes a particular passage on a piece of paper he owns.

Anonymous Coward says:

Re: Re: Re: Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm

No there should be no line, and if there should ever be one, it should be enforced by social norms not governments ever.

Look at how open source operates, everybody can copy, alter, distribute and sell and there is no problems there why should she get anything from anybody?

She didn’t do the work, she wrote a song and got paid for all the work she did it with it, what else does she wants?

The benefits of the work others do, should be theirs(I feel dirty defending Sony now), not hers, they got something, used and made it a success if she couldn’t do it, that is her problem no theirs.

DandonTRJ (profile) says:

Re: Re: Re:2 Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm

I’m all for open source. I believe that there is plenty of progress that can be made and social utility gleaned from products that lack copyright, that crowd-source and spread as widely as possible. But there are also products that are not economically feasible without the benefits of copyright, and I believe the world is better off having both sides of the coin. Just because copyright maximalists ignore the proper balance (mindful that, as Mike often writes about, copyright isn’t necessary as zero-sum game) doesn’t mean that copyright minimalists should feel free to do the same, not if they want to be seen as taking the higher road on the issue.

As for your argument that she didn’t do the work, that’s like saying an architect didn’t do any work when a contractor uses their blueprint without paying them. They laid the foundation, and it denigrates the value of that labor to claim that they should have no equitable claim in such a scenario.

Anonymous Coward says:

Re: Re: Re:3 Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm

Why should a contractor have to pay an architect to use her blueprint?!? If the architect cannot figure out how to make money from the blueprint, why is that anyone’s problem but the architect’s? If the architect wants ownership over that design, she can draw it up, put it in a safe-deposit box, and keep it there.

TtfnJohn (profile) says:

Re: Re: Re:4 Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm


Architects routinely copyright their designs to the extent that the law allows. And the do charge the owner of the structure being built and, therefore, indirectly the general contractor in charge of constructing it.

Before handing over the drawings and notes whoever hired her for that has to pay her. Often quite a chunk of change.

Oh, and FYI, almost no one does blueprints anymore. Even those things that sorta look like them are computer generated and printed off on the nearest laser printer.

TtfnJohn (profile) says:

Re: Re: Re:2 Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm

Open source also demands that you acknowledge the work and creator(s) of the work you’re building on. Just go through all the variants of the GPL license.

And in this case it’s a direct copy with new paint (lyrics) and finish (production). I hate to break it to you but under terms of the GPL this could, on the surface, end up in court as well.

By the way, don’t feel bad about defending Sony. They just released the work after the beer ad became a hit. Others didn’t do significant work on the song, they copied it, attached it to a beer ad which became a hit. What she’s saying here is that she didn’t even get acknowledgement as the songwriter or even a penny of the profits of it becoming a hit. It’s the first half of that sentence that I detect saddens her more than the money. But a share of that would be in the best traditions of FOSS, too.

As she says the whole thing has become so arcane and complicated that not only can the wealthy play the game but that it’s long since lost it’s usefulness as a concept that ensures creators get some coin for what they’ve done.

Where DandonTRJ goes wrong is that copyright is some sort of guarantee that the creator will ever get paid. The arts is a risky business. Most artists never see a penny from it. Nor, in a perfect world, would I cast this as unfair competition. It’s the same song, new lyrics and a new stage as a beer ad. I’d argue the production values are higher too but that’s not really the point. It’s the failure of the system to allow her to share in what is, after all, the same song with new lyrics. After all, she did the heavy lifting here.

By not sharing it the brewery DOES NOT adhere to the concepts and practices of open source. They abuse them.

Squire Headlong says:

Re: Re: Re: Response to: DandonTRJ on Apr 12th, 2012 @ 4:28pm

‘Crowding out’ is only one possibility: it could also be that the other copies have no effect on original sales, or that other copies increase original sales.

Looking at the basis of the standard economic model, it trades off access against production — both are good: for either, a reduction is bad, an increase good, but the key is the overall effect.

In the first of the above possibilities, reduction of sales of the original, this is only bad if it reduces production of the original — or rather, would do in future similar cases. But we do not actually know that.

In the other two possibilities, it seems we have only a positive gain overall: more access to the same amount of goods, or more access *and* more goods produced.

But in the end, we need empirical evidence for what *is* actually happening, otherwise none of the economic analysis is worth much.

Attribution is generally a good thing though.

‘Slavish mimicry’ does not actually subtract anything, it is just increased access, as above — i.e. good, if anything.

‘Free riding’ seems a difficult concept to apply here. There is sense in wanting all that use a resource to pay a contribution to it. But that is problematic with nonrival intangible/abstract/informational goods. Ideally, everyone who wants something created pays something toward it. But what about those who will benefit years into the future? They cannot be part of the transaction: they can neither choose nor pay. And why should we want them to? The intrinsic freedom — the unlimitedly reusability — of informational goods is exactly what we *want* to exploit, and maximise.

Anonymous Coward says:

Re: Re:

I don’t think this should matter, copy it, use it as you see fit and do your own thing and the best one in the market wins.

What is wrong with that?

Because you think you created and have some sort of emotional attachment to it, you should own it now? and rip benefits that you didn’t do any work to accomplish?

If others can get something and make it a success it also means that lady could have done it, she just didn’t know how, why get angry and sad because others made it and she didn’t?

fattyboombatty (profile) says:

I appreciate where you’re coming from, especially since both songs are so similar.

I don’t understand the notion that your song is somehow special and unique. It’s not something that is unlike anything ever heard before. You didn’t create it in a vacuum and I’m sure you didn’t pay anyone royalties for the inspiration you had when you created it.

It’s music – we need to get over this 21st century notion that we somehow own the notes/arrangement/lyrics and can ignore the thousands of years of history of musical creation, and start laying land claims now and insist everyone owes us when they create something similar.

You are talented and creative, but you are not unique, and your song is just like many before it. Take it as a compliment if you feel they are “copying” you and use your talents to create something “new”. You’ll feel much better about yourself.

Lawrence D'Oliveiro says:

How About Some Plagiarism Jujutsu?

Are you able to use the popularity of their copy as a way to publicize your own version? For example, point DJs at your song, and ask them to play it alongside this version to highlight the similarities, then ask viewers/listeners to ask which came first, that kind of thing?

In other words, try to play the good publicity game. The kind of publicity you get from being embroiled in a lawsuit (from whichever end) tends not to be good.

Anonymous Coward says:

Overvaluing Your Content

Erin, you are making a standard artistic mistake that we sometimes talk about here, overvaluing your content. Sure you wrote the music and the lyrics, then got musicians together and sung the song. Then someone else came along and said, “Hmm. Has Promise. Let’s fix the music, change the lyrics and hire different musicians and a different singer. Let’s do a deal with a big company. Then we might have something.” Notice all the things they did different. You did not contribute to any of those different things. You are fixated on the music being so similar. Only one note has to be different and it is different music.

There is no way your contribution to the final successful product is anywhere near 50%. If you ask for 50% you will spend a lot of money on lawyers and lose. If you were asking for 5% or less, you might have a chance.

Better still would be to take the truly excellent advice given above and, “Stop the lawsuit now and get to work.” You should be analysing hard about all the things they did different. Answer the question, “Why did they succeed and me not? What was I doing wrong?” Art is difficult. The public is fickle and unforgiving of mistakes. Treat it as a valuable learning experience that they are giving you, for free.

DandonTRJ (profile) says:

Re: Overvaluing Your Content

You’re assuming the changes were what made it valuable. That the “new version” succeeded on those merits, rather than by the position those who copied were in to launch it. In such a case, their contributions may merely be cloaking what was really valuable about the song – everything that was copied. Arguments can be made both ways, and it doesn’t seem intellectually honest to presume one over the other without more data. More fundamentally, if the improvements were more important to its success, why not license the arrangement on the cheap knowing that the raw material being procured isn’t as valuable as what they would have to add?

Anonymous Coward says:

Re: Re: Overvaluing Your Content

You don’t need more data, someone else took the song and made it a hit somewhere else, that is the fact of the matter, the behind the scenes of why it didn’t credit the original could be for a lot of reasons the strongest one is that giving credit is also pleding guilty in a court of law so no credits will ever be made.

Now why should she get any money for it?
All the work was done by others(evil Sony), she wrote a song and couldn’t make it a hit, others used and made it a hit elsewhere, why should her get anything at all?

Because she wrote the song? that is past work, where is she creating her own market?

Calvin (profile) says:

Do we make more progress in discussing this if we call it plagiarism rather than copyright infringement?
Erin seems to be as upset by the fact that she’s not recognised as the writer of the original song as she is by the lost revenue. The second version doesn’t, to my untutored ear, seem to have bought a lot of originality to the party. So why not heap the scorn on it that plagiarism attracts in academic circles and shame the copiers into changing their ways?

Anonymous Coward says:

Re: Response to: Calvin on Apr 12th, 2012 @ 4:50pm

And what exactly is wrong with plagiarism? artists and “creators” need to get over the idea that they are making something new that deserves attribution. Everything is a derivative work. Do you know the name of the woman that made your shoes? Or the man who assembled your TV? If not, why aren’t you demanding that information?

What makes a song more special than your shoes? Or your TV?

The demand for attribution and “credit” exists as a necessary first step to demanding ownership of ideas. If you name the “creator,” it’s a far smaller step to demanding ownership of what’s “created.”

It will be a better day when these haughty “artists” get over themselves and get back to churning out more remixes for the good of us all.

Anonymous Coward says:

Re: Re: Re: Response to: Calvin on Apr 12th, 2012 @ 4:50pm

You are trying to denigrate utilitarian work to make “artistic” work seem important and special so you can claim ownership of ideas like many IP maximalists before you.

Find a man in the desert and ask him whether he would care more if you took away his shoes or deleted a file on his iPod. You will quickly find out which is more valuable.

DandonTRJ (profile) says:

Re: Re: Re:2 Response to: Calvin on Apr 12th, 2012 @ 4:50pm

I never said anything about value. I said a different sets of concerns. Also, you’d do well not to call me an IP maximalist when I have expressed no such views in this thread (indeed, all I’ve done is vouch for the utility of copyright in certain limited circumstances – that makes me a maximalist?).

Anonymous Coward says:

Re: Re: Re:4 Response to: Calvin on Apr 12th, 2012 @ 4:50pm

I can understand the IP maximalists at least, but this “shades of gray” crap really smacks of appeasement.

This community can usually be counted on to hold the line, but as soon as some girl shows up with a guitar AND A CADRE OF LAWYERS, it’s all “oh well consider everyone’s feelings” and “shades of gray.” Is that hypocrisy or just selling out?

If you are trying to stifle the creativity of people because they succeeded where you failed, if you are suing them or enabling such a lawsuit, or if you are denying the public the maximum benefit of its collective creative output, I think you might need to consider the possibility that you are simply a bad person.

AB says:

Re: Re: Re:5 Response to: Calvin on Apr 12th, 2012 @ 4:50pm

It seems to me she is utilizing existing copyright law, not justifying it. Furthermore, she is not attempting to defend her feelings or actions, simply to share them with us.

Personally, I appreciate her willingness to share this with us. I gives us all a chance to see things from the emotional side, rather than just the logical side that we normally explore.

This doesn’t change my opinions, but it does give me a greater understanding and a clearer image of how those emotions shape people’s decisions on this subject.

Calvin (profile) says:

Re: Re: Response to: Calvin on Apr 12th, 2012 @ 4:50pm

I think it boils down to how fine a line you draw between inspiration and copying. I think we’d all agree that if someone printed a copy of the Harry Potter books but with a different author named on the cover it would be considered plagiarism. How much do these pair of songs differ and how much difference does there have to be to change it from plagiarism to derivation?

Anonymous Coward says:

Re: Re: Re: Calvin, "Slavish"? Really? Reality check time...

I would just like to add a perspective that anyone who claims the song/production sung by Debbi is a “SLAVISH” imitation of the “original” is being wholly ridiculous.

While Erin points out a few similarities, and then says “I could go on”–actually going on with the comparison doesn’t really help her case. It unravels very quickly.

What is striking about actually listening to these two different pieces is that they utilize completely different elements to make their respective statements: they are two different songs.

You cannot copyright a key, a tempo, a beat (and let’s fact it, the beat is probably the most generic rock beat possible) or an entire metaphor concept. Hell, you cannot even copyright a set of chord changes, for christ sake–and in this case, these two songs have completely different chord changes, as well as completely different melodies.

This is not to say that the touch the sun song was not modeled on slung lo. It does have some amount of similarity, perhaps a few too many to be totally coincidental. However, most of the similarities are in exceedingly generic ways, and most of the actual musical content (melody, harmony, counterpoint) is authentically distinct–or even absent from Erin’s song (although Erin’s song has much more interesting chord changes.)

On this basis, I have serious doubts that a copyright lawsuit would stand even a remote chance. I have an awful suspicion that a shady lawyer is going to take Erin’s money because she’s willing to spend it, not because the case has any actual merit.

Anonymous Coward says:

Re: Re: Response to: Calvin on Apr 12th, 2012 @ 4:50pm

The demand for attribution and “credit” exists as a necessary first step to demanding ownership of ideas.

Two problems with that:

1. It’s not a sufficient condition by a long shot.

2. It’s also a necessary foundation for many of the new business models that Techdirt often talks about.

The whole “connect with fans” idea depends crucially on ensuring that for the creative works that you put out there, there are always pointers back to you.

Whether or not you think that there should be a legal mandate, can you at least understand the frustration when the remixer doesn’t even admit that they’re remixing, even when they know it’s true? I’ll bet that, like me, you’re annoyed when big content industries try to perpetuate the myth of the lone genius working in a vacuum. Why is it okay when Zubak, Graus and Kachut do it?

Suzanne Lainson (profile) says:

Re: Re: Re: Response to: Calvin on Apr 12th, 2012 @ 4:50pm

The whole “connect with fans” idea depends crucially on ensuring that for the creative works that you put out there, there are always pointers back to you.

Let’s explore that a bit. What if everything you do is always copied exactly? No matter what you do, your imitator copies everything, mimics everything you do. Everything. Now, what is usually suggested to musicians is that they put on a live act. But let’s say we get to a point where your live act can be duplicated to such an extent, there is no difference between you and your unauthorized clone. Let’s move into the not too distant future where appearance, mannerisms, content, can be duplicated so that it is impossible to tell the difference between originator and mimic.

Anyone have any thoughts?

Pseudonym (profile) says:

Re: Re: Re:2 Response to: Calvin on Apr 12th, 2012 @ 4:50pm

I wrote the comment that you responded to, but accidentally posted it anonymously. Not that “Pseudonym” is my real name, of course. Yes, I am aware how amusing it is that I’m claiming attribution on something that I failed to attribute to myself.

Since you responded to me, here’s my 2c:

While I agree with the usual Techdirt line that copyright and intellectual property has shifted far away from anything even closely resembling a sweet spot, I’m agnostic on whether or not “CwF + RtB” is a suitable business model for everyone in the creative business.

But for those who are going to try it, attribution is crucial. I very much agree with the principle behind the “moral rights” of the Berne convention: the right to be identified as the author of your work, and the right to object to (and, if necessary, the right not to be associated with) a mutilation of that work. The principle is that anyone, whoever they are, should be given due credit for what they did and should not be blamed for something that isn’t their fault. This is especially important if your reputation is your livelihood.

In the specific situation that you mentioned, I honestly don’t know what I’d do if I was the one being copied. Imitation is the sincerest form of flattery, but I’d feel far from flattered if the copier didn’t even want to talk to me about it. That, of course, was Erin’s main objection, too.

Suzanne Lainson (profile) says:

Re: Re: Re:3 Response to: Calvin on Apr 12th, 2012 @ 4:50pm

I think we’re moving toward a situation where everything that can be copied will be copied and the window of “uniqueness” will be become shorter and shorter. Put it out today and have clones available within hours.

Therefore, to me it makes more sense to talk about the economy in a world of hyper-competition and mass duplication than one of scarcity (other than scarcity of certain resources which are being depleted and can’t be duplicated). When creativity, output, and income are not linked, and mass duplication doesn’t affect one’s livelihood, that’s one way to deal with the problem. If every professional skill can be shared with every person, then who does the creating has no economic relevance.

AB says:

Re: Re: Re:4 Response to: Calvin on Apr 12th, 2012 @ 4:50pm

“then who does the creating has no economic relevance”

I agree with what you say, but also want to point out that economics aren’t everything. Many (perhaps most?) artists have an exaggerated sense of pride and crave accreditation for their work. I suspect the desire for fame may actually be a stronger artistic drive then the basic needs of survival. This is why there is never a shortage of ‘starving artists’ no matter how strong copyright law becomes. Of course I don’t think either of these is as strong as the basic desire simply to ‘create’ in the first place. That’s why artists are so easily abused by producers and publishers.

Suzanne Lainson (profile) says:

Re: Re: Re:5 Response to: Calvin on Apr 12th, 2012 @ 4:50pm

I suspect the desire for fame may actually be a stronger artistic drive then the basic needs of survival.

I think we will always have people making music and art. I’m envisioning a world where there will be no need to make a living at art because there won’t be bills to pay as such. It’s the abundance or money-less model that some people are conceptualizing.

AB says:

Re: Re: Re:2 Response to: Calvin on Apr 12th, 2012 @ 4:50pm

Not sure why you would want to explore that, but here’s my thoughts…

Every single live act is unique. Perfect copies of previous performances are no different then copies of televised performances. They are still just copies. You can only see each performance ‘live’ once.

If someone stages a (holographic?) copy and claims is it is an original ‘live’ performance then they are making fraudulent claims (which are covered under a different set of rules, not copyright).

While I do believe copyright can be useful (though not under its current conditions) I do not support it because it is too easily twisted into a horrible nightmare such as we face today.

Credit is another matter. When a work is copied directly or even acts as a direct inspiration for another work I believe it should be given appropriate credit in the same manner that knowledge is given credit in the scientific community. Of course once the work is sufficiently diluted to becomes ‘common’ knowledge it no longer requires accreditation.

Those are my thoughts anyway.

Pseudonym (profile) says:

Re: Re: Re:2 Response to: Calvin on Apr 12th, 2012 @ 4:50pm

I just re-read what I wrote, and I think it’s pretty clear that I said nothing even remotely resembling that. What I said was that even if you don’t think there should be a legal mandate, the frustration is understandable and justified.

By the way, even if I did say that, the guilt by association act is stupid. Regardless of how many serial murderers agree that puppies are cute, this does not constitute a valid argument that puppies aren’t cute.

Anonymous Coward says:

Re: Re: Re:3 Response to: Calvin on Apr 12th, 2012 @ 4:50pm

I said requiring attribution was a necessary step toward idea ownership and IP maximalism. Which it is. You said that a problem with my statement was that if attribution is no longer required, many Techdirt business models won’t work.

The MAFIAA claims that strong IP is required, otherwise their business models won’t work. Same shit, different flies. But I guess when they’re your favored business models, it’s ok.

Re: emotions (which I never mentioned); you go ahead and feel as butthurt as you want. Go post sad faces on your Livejournal and do some vaguebooking. Look for sympathy on Techdirt if you’re na?ve enough to believe you’ll find some. But the minute you drop a dime to an attorney or let your record company do it for you ? That’s when you become a litigo-terrorist.

Squire Headlong says:

Re: Re: Response to: Calvin on Apr 12th, 2012 @ 4:50pm

Attribution is good because, generally and simply, information is good. If we should want more of such a thing in future, we will know where to get it. We all gain from informing each other, and at negligible cost.

Certainly, every minute detail of production, the whole genealogy and provenance of an item, is not commonly of much value or use. And if all that cannot be included, just the most important can, by convention, be chosen. That not all information is reasonable does not mean none is good.

Christopher O'Neil (profile) says:


The greatest wrong committed here is this: if indeed these songwriters copied the song that Erin McKeown wrote, then Tomas Zubak, Peter Graus, and Maros Kachut effectively lied. And more than likely, they have profited from that lie.

Perhaps Erin’s emotional response would have been very different if the credits for “Touch the Sun” had read, “Adapted by Tomas Zubak, Peter Graus, and Maros Kachut from Slung-lo, written and originally performed by Erin McKeown.” But that is not what Zubak, Graus, and Kachut did.

They presented themselves as the creators and originators of the song. And they sold that song for a price, on the basis that they had written the song themselves for Debbi to perform. It was a lie. If nothing else, if they had simply told the truth, the success of the copy could have brought Erin McKeown new fans and publicity. Perhaps Debbi would have turned to Erin to commission a new, original song written specifically for her. Instead, Zubak, Graus, and Kachut chose to claim that Erin McKeown’s song was their own original idea.

It is not that Zubak, Graus, and Kachut stole something. They didn’t. The real wrong here is that they lied.

Anonymous Coward says:

Re: Lies

How much effort did McKeown expend in the remixing and recording of Zubak et al.’s song? None at all. What claim has she over it, then?

Who did McKeown credit for her own song and pay for the privilege? I am led to believe the answer is “no one at all.” Are you saying she came up with her song entirely on her own with no influence or inspiration from any other music at all? I think not.

If they lied, she lied. This is a specious argument and is just another effort by IP maximalists to claim ownership of ideas and culture.

DandonTRJ (profile) says:

Re: Re: Lies

You’re consistently refusing to acknowledge any shades of grey in the use of prior art to create new art. Inspiration and slavish copying are not the same thing, and wider culture (along with every modern legal regime) has validated the distinction. You would do well to acknowledge this, if only to then try to explain why that distinction should not be.

Anonymous Coward says:

Re: Re: Re: Lies

That is because the shades of gray were artificially invented by IP maximalists to capture profits and deny the public their own culture. Intellectual property was theoretically created to benefit the public and incentivize new “creations”. However, it can do neither.

Which provides a greater net benefit: a single, moderately successful song or a moderately successful song AND a hugely successful “derivative?” The latter, of course. Your efforts to stifle the latter reveal only your greed at the expense of the rest of humanity.

DandonTRJ (profile) says:

Re: Re: Re:2 Lies

I was going to set aside some time to unpack all the assumptions and generalizations you just tossed out, but then I got to the end where you started to personally insult me and realized it’s just not worth my time. You’re a bomb-thrower, not actually here for civil discussion, but simply to be pejorative against those whose views differ from your own. Thus, I will politely excuse myself to get some actual work accomplished.

Anonymous Coward says:

Re: Re: Re:3 Lies

Do you think Homer was seen as a thief by his contemporaries? Do you think the caveman who learned to make fire from watching his neighbor was considered a thief?

That distinction was drawn when IP maximalists realized that they could punish others that represented the slightest competition. Your argument that the distinction is historical or natural is just a fantasy.

AB says:

Re: Re: Re:2 Lies

The shades of grey are not artificially invented by the IP maximalists. They are abused by them.

I can agree that attribution acts as a ‘first step’ towards the copyright chaos that exists today, but that does not make it evil. I also agree that given a choice of extremes I must side with abolishing copyright completely, but only because it is the lesser evil.

Perhaps being a Canuck effects the way I think. For the last twenty years I’ve had to make voting judgements based on ‘the lesser evil’ rather then ‘the greater good’ and it may have biased me toward seeing the entire world in shades of black.

Coises (profile) says:

Re: Re: Re: Lies

I don?t hear slavish copying, though.

In fact, if someone challenged a group of songwriters: Listen to this song, ?Slung-lo?; then try to reproduce as closely as possible the same feel, sensibility and appeal without actually duplicating any copyrightable elements… I?d say ?Touch the Sun? would make an excellent entry in that contest.

Proving infringement is going to be tough… I hope those lawyers are working on contingency.

DandonTRJ (profile) says:

Re: Re: Re:2 Lies

And if the court deems it isn’t slavish copying, that’s their prerogative. All I’m asserting is that artists should have some recourse when the copying of their work crosses from inspiration to wholesale misappropriation, whereas some of the comments here are taking an “all copying is good all the time always” approach, which I find slightly obtuse.

Anonymous Coward says:

Re: Re: Re:3 Lies

By the time a court has gotten involved, all the potential benefit has gone to the lawyers. At that point, both sides have lost so badly that any “victory” is imaginary.

This is what makes it so hard to deal with IP maximalists: it’s so hard for them to get over their emotional fear of being “ripped off” that they are blinded to the rational truth: if free copying of everything were allowed, everything would be better all the time. All arguments to the contrary have been thoroughly debunked.

Coises (profile) says:

Re: Re: Re:3 Lies

All I’m asserting is that artists should have some recourse when the copying of their work crosses from inspiration to wholesale misappropriation

That troubles me, too. The idea that creative work can be ?monetized? only by finding some ancillary scarcity to exploit (because the thing that?s truly of value ? the art ? is non-zero-sum and hence cannot command a price in an unregulated market) seems like it places the focus on the wrong thing: advertising deals or merchandise tie-ins or whatever. Ugh.

Yet, part of what makes many of us question the whole system is precisely the shades of grey. Even the potential ?infringer? might not know whether it was inspiration or misappropriation until the lawyers duke it out and the judge or jury spins the wheel of fortune. It sounds to me like the writers of ?Touch the Sun? may well have copied Erin?s idea, but not her song. If they did, they still might not have been consciously aware of it. If they were, it?s easy enough to see why they avoided mentioning that.

As others in this thread pointed out, the potential penalties associated with ?infringement? turn the normal social incentives to give credit where credit is due upside down. This and many other unintended consequences suggest that the whole concept of ?intellectual property? might well be doing more harm than good. Were the distinction between inspiration and plagiarism a bright line, maybe laws could be crafted to protect artists, and to make it straightforward for them (and those who invest in their work) to earn money in the marketplace without doing much collateral damage. In the real world, IP laws seem to be working less and less well for everybody, excepting IP lawyers.

Drew (profile) says:

There are plenty of songs that sound similar. There will be more styles in the future but as time goes on it’s only natural that more and more songs will sound very similar. Most of the artist today are inspired by some band they loved growing up and they will sound similar. It does not mean they’re a bunch of thieves.

You know anther thing that has the same effect is comedy. Look at Andrew Dice Clay he sounds very very similar to Rodney Dangerfield. Why? Well that’s simple he was one of Clays heroes and gave him the break that let him become a legend. If it was not for Dangerfield “RIP” who knows what would have become of Clay. They’re both two of my favorite comedians.

There are only so many ideas that can be done till stuff is bound to start resembling older models/concepts. The only thing copyright laws are going to do for that is cause a bunch of shit that could be improved to stay shitty.

I would like to think ideas are infinite but I know better considering the time our planet has left is finite.

F! says:

Re: Re:

I’d say this sounds more like a situation for CC-BY-NC.

BY would give Erin McKeown credit where it’s due

NC would still allow for the lawsuit because this is clearly a commercial use.

Might add the SA, but I’ve found when releasing work as SA noone ever makes use of it. I started out (digital artist) releasing work as CC-BY-SA but while I received lots of kudos, noone used it – which was what I create for in the first place. When I changed all my licensing to CC-BY-NC, I suddenly started to see it everywhere, and properly credited too. Warms the cockles of me heart…

Dave (profile) says:

Hi Erin. I understand you have some very strong feelings about this. It can be frustrating to feel like someone is taking credit for your ideas and work. That feeling is multiplied by the fact that their ‘copy’ is very successful. However strong the similarities are, they don’t equal infringement.

Breaking down your description of the “substantial similarities between them”:
check out the lyrical content (weather as metaphor for happiness)

I haven’t looked at the lyrics side by side, but I’m assuming, because you didn’t mention it, that they didn’t use the *same* lyrics, so that’s out as an example of infringement. Weather as a metaphor for emotion is so ingrained in our cultural subconsciousness that it would be shocking if there hadn’t been many poems and songs that use that theme over the past several hundred years. Examples: Walking on Sunshine, Rainy Days and Mondays, The Thunder Rolls, Scatter Sunshine.

the almost exact song structure (solo verse, band verse, double-tracked vocal in the chorus…), and the vocal cadence in unison with the descending instrumental line in the chorus.

Song structure is not protected expression at all. Even if yours was original (it isn’t), you can’t copyright it and it isn’t infringement.

The most similar thing about the two songs is their feel. And even that isn’t unique. Here’s just a few of the artists I’ve heard whose songs have a similar ‘feel’ to them:
Erin McCarley
Sara Bareilles
Ingrid Michaelson
Colbie Caillat

Other thoughts… Inspiration is everywhere. Your music was influence by everything you’ve heard before and everything around you. As a society we seem to think we value originality, but we don’t. Not really. We do value creativity and that is evident in both songs. True originality is very rare. Orson Scott Card wrote a short story about a society that insisted that all of its artists be original. It’s very sad. So is Melancholy Elephants. In that one, artists had to have their songs scanned by a computer to see if they are original enough for publication. But that could never really happen.

A successful song is not based on the the content itself. That’s actually a very small part of it, and not even the hardest part. I’m completely convinced that there are hundreds of thousands of songs that I’d love, but I’ll never hear. Getting it out there is 95%+ of a successful song.

Sorry. Got kind of long winded. Bottom line: Every song copies elements of others. Whether the song writers heard your song a few times and unconsciously created one with the same elements, sat down with your song and intentionally changed it just enough to be a different song, or you all had the same influences, it is not infringement, and I hope the judge is smart enough to see that at the summary stage.

art guerrilla (profile) says:

i ain't no musician, but i heard music onced...

…and that there song on that there commercial sounded *EXACTLY* like her ‘Slung lo’…
if i were a moron in a hurry (which i am), i would have thought they *WERE* the same song/artist/music…
in fact, if i were an ‘expert’, and casually listen to both ‘versions’, i don’t see how you can’t see the commercial version is a *TOTAL* ripoff of hers…
*NOT* a remix, *NOT* ‘inspired by’, *NOT* ‘reminiscent’ of hers,
*EXACTLY* like hers…
*THIS* is *EXACTLY* the type of case which should be a beneficiary of legal recourse…
art guerrilla
aka ann archy

TimK (profile) says:

Re: i ain't no musician, but i heard music onced...

You do realize that the song in the commercial IS her song which is why it sounds EXACTLY the same right? And that the supposed copy is in a different link because it couldn’t be embedded right? This is all some sarcastic post and I’m not in on it right?

Any who. I for one think the songs sound similar. Not copied. Not the same. Similar. Similar to songs I hear just about every year on the radio from some folksy pop-y artist. Recently, as Dave so thoroughly pointed out, names like Colbie Callait and Sara Bareilles come to mind.

There’s similar and then there’s “the same”. I learned the difference in grade school.

mikey4001 says:

To my ear, these two songs do sound very, very similar. However, being “very similar” is not likely good enough for a successful lawsuit. Industry professionals, and especially those who work for giant media companies (as seems to be the case here) know quite well how to walk the fine line between copping the style and flavor of a thing, and full-on copyright infringement.

An example of what I mean can be found in the Daily Show segment Back in Black with Lewis Black. The bumper music is designed very deliberately to invoke the style and feel of Back in Black by ACDC. It is almost a direct copy, right down to the name of the song. However, it is just barely different, so no royalties or litigation. Even though Viacom (owners of the Daily Show) sometimes seems hyper-aggressive in protecting their own brands, they are apparently not ashamed to blatantly appropriate someone else’s ideas, style, and manner. With regard to the McKeown case, I suspect that Sony’s stable of writers and producers knows as well as Viacom’s how to walk that fine line. I hope Mckeown’s lawyers are only getting paid if she wins, because I do not hold much hope for her getting anything from this but a headache and crippling legal fees.

ACDC: http://www.youtube.com/watch?v=CwIvBNsSywQ
Daily Show: http://www.youtube.com/watch?v=FGMGnpKcSCs

Charlx (profile) says:

The problem about copyright it’s mostly, there are leechers that think the work of others belong to them.
If I get this right, one of the Sony’s seals is the one promoting the new “Slung lo” and Sony itself is a pro-copyright holder, which is that could make anyone angry cause such hypocrisy, moreover, they are always winning millions and when a person gets a song “illegaly” they threat him with extraodinary fines that costs even thounsands of times the real price. Moreover, when there is a similarity with any work or even coincides like names (search for that shameful “Twilight” movie and their suying crusade only for the name itself, ridiculous) they go after the persons no matter the diference, because for them there’s no difference between “similar” and “same”.

That’s one reason mostly of us hate the copyrights, how the big companies don’t let the people progress with their lawyers and copyright issues. And when they infrignt copyright, they ignore their “ideals” and act like a total hypocrats. And even they are having secrets meetings and act like they are the rest of the world creating laws without the democratic process which we suppose follow.

The problem now isn’t only a group of artist and their work stolen, it’s now how a group, a “mafia”, it’s trying to take the world literally, they want to control the internet, a place where everyone is free to do wathever wants. This is now a matter of freedoom and fight against and dictatorship.

In this case, Erin has been ignored as the original creator of her song and they are using it to won millions and awards that recognize a good work, when she have not got any of this. That’s unfair considering the dirty work that is being made to supposely protect persons like Erin, but at the end only benefits the industry and not the artist itself.

As finals words, i know about a “musician” (no exaclty musician, has composed a lot of songs, but he is also a writter, artist and mainly a programmer) whose work has been remixed in different ways and a good amount of musicians have used their songs to make some profit, but not without recognize the original author. And even once i heard a remixed song of his on a commercial and doubt it was “made” given the credit to the remixers or even the author (and there is no racket, probably for being a almost unknow comercial). And even so this guy who i’m talking about has never complaint, and even encourages to use his work with no restrictions. That’s a real artist and worker, and their fans always recognizes him as the original author. If only the rest of the artist where like him.

OnlyMe (profile) says:

Get over yourself already

Well, I just listened to the beginning of both songs, and they sound similar but no means are the same. Personally I think both songs sound rubbish – there are hundreds of others with a similar “feel”.

Are songs such as this deserving of copyright? I don’t think so.

Every man and his robotic dog is making music these days, so its time to get rid of copyright for music, and in doing so get rid of these parasite copyright lawyers.

Her song might might not be “promoting the progress”, but killing off copyright lawyers is!

AB says:

Wow. I just tried playing them simultaneously and the music is so close it actually blends together. The lyrics, however, are substantially different though clearly co-inspired.

I don’t know if you will win a law suit, especially against a giant like Sony. And they did build on your song rather then just copy it (sorry, but I actually prefer the new version). It’s a shame that they couldn’t acknowledge your work as that would have helped both of you far more then a law suit will even if you win it. But that is the major problem with litigation based copyright – they can’t afford to admit to anything because the incrimination will cost them even more.

I also don’t know if I really care since I firmly believe litigation is over used in the IP field. On the other hand I feel that Sony makes the Devil look like a misunderstood saint, and I will applaud anything that takes a swipe at them so I will wish you good luck.

Whatever happens, just airing your feelings has certainly increased awareness of your songs and you may find your audience growing simply from the added exposure. I hope so and wish you well in all your endeavors.

Jamie (profile) says:

Idea vs Expression

I’ve seen posts recently on TechDirt trying so explain that when it comes to copyright, there’s a big difference between an idea and how that idea is expressed.

If it’s the expression that’s copyrighted and not the idea, how can this be a case of copyright infringement? It’s different lyrics, different music, and a different set of performers. While the songs are similar, and a lot of ideas are the same between them, they are both expressed differently.

No doubt it’ll take a judge to make a decision on how similar the expression is, given that the idea is almost certainly copied. However, it’ll be a very fuzzy line to try and draw.

Josef Anvil (profile) says:

A weird day at TechDirt

Maybe it’s just me, but I think that Erin is using copyright law in the way it’s supposed to be used.

We hear a lot about companies and artists going after individuals for personal uses of media and how that causes unimaginable losses to the economy, but thats just attacking customers. Besides promoting science and the arts, I think we all have a gut feeling that copyright is designed to prevent large scale commercial infringement that actually harms the artists.

While I believe, like many others, that the copyright system is severely broken, Erin’s case is exactly what it is designed to prevent or make reparations for.

As for the person who mentioned that he did work back in 2003 and that he doesn’t expect to get paid for it, that is why the length of copyright should be changed. Erin deserves copyright on her work, but not for her life +70 years or whatever it is now. 10 years seems an arbitrary yet fair amount of time for an artist to maximize profits before allowing work to enter the public domain.

blakey says:

Yet another perky quirky girly song

its a nice pretty song in the style of many current artists. Layout an structure: verse, chorus, instrumentation, vocals, are all fairly standard to current trends. The noticeable similarities in the melody and phrasing may well have been taken from her song, and it is shame that the new writers did not credit her if they did directly copy her song. But you cannot be sure. All composers have copied/been inspired by previous works. The main problem is that, at a guess, the new writers thought it wouldmake life to difficult copyright/legalwise to speak to her at all. After they had written the song they were probably worried that they would lose the song altogether like The Verve lost Unfinished Symphony to the Rolling Stones. In a way its copyright laws fault: it adds fear to creativity.

Anonymous Coward says:

Steve Vai, the guitar player, once “wrote” a song that he had listened to years before but forgot about. It’s called “Bangkok”, on his Fire Garden album. After recording the thing, and doing the mastering of the new album (that’s thousands of dollars into the process of making an album) somebody told him it sounded like a song from the musical “Chess”, so he checked it out and it was exactly the same tune. Well, he talked to the guy who wrote it, and he just said, “sure, put my name on the credits for the song on the CD sleeve” and that was it. Now that’s the way to deal with copyright..

indieThing says:

This situation reminds me of a similar situation I found myself in.

27 years ago, I wrote a fairly popular game that done pretty well for the time. I’d recently decided that I’d like to revisit this game and create a new uptodate version with expanded game play and prettier graphics. I’ve recently found that there are now two versions created by others with exactly the same gameplay mechanics and exactly the same name (“Oh Mummy”).

I immediately started to be concerned that this would cause problems with getting my game onto the iPhone App store as a game with this name now exists there. Although I could prove I’m the original creator, I’m not sure how easy it would be to get Apple to recognise that fact.

After a bit of a rant I calmed down and realised that I ‘could’ talk to the new game creators and possibly get them to change the name, or, I ‘could’ go legal and lawyer up. Of course, after I’d calmed down, I realised that the games creators were probably fans and didn’t want to do any harm, especially with the age of the game!

My actual choice eventually was change the name of my game (now to be called ‘Mummy Tales’), to reflect the update and use the fact that I was the original author/creator in marketing and PR. There seems to be a demand for older retro games now, so this could be used to my advantage. I realised that putting a lot of effort and mental energy in going after these people would just drain me mentally as well as financially. I’ve seen a couple of friend go this route, and over the course of multiple year battles, it almost destroyed their sanity.

Ideas are ten a penny – it’s the implementation that counts, we need to get over the concept that we’re special or gifted to be able to come up with good ideas. The amount of times I’ve thought of a good game design or a new algorithm and then seen it appear by someone else in the next few months is crazy.

Anonymous Coward says:

Am I the only one who finds it funny that she speaks it such a high-principled way about a spiritual question about who she is as a person, and that really it is all about just asking, and sharing the credit… but in the end she wants 50% of the cash, oh, and, no public apology needed because who cares if you can get the money, right? So in the end it’s all about cash, as usual. (not that I blame her by the way; I would do the same probably)

Paul (profile) says:

The value created was not the song itself

Writing the song is only a small part of the equation. Erin McKeown wrote a very nice song. Someone else did the hard work of turning it into a hit. Sounds like Erin is jealous that someone else is more capable than her at creating hits.

Maybe Erin should learn from this and focus on what is her strength – songwriting. Sell your great songs to people who are more capable of turning them into hits. You can make a nice living that way.

Suzanne Lainson (profile) says:

Re: The value created was not the song itself

Sell your great songs to people who are more capable of turning them into hits. You can make a nice living that way.

You don’t need to “sell” the song to collect on it. If you are the songwriter and someone else records it, you are entitled to royalties. That system is already set up.

And if someone wants to use it in a TV show, movie, or commercial, they negotiate a price with you. They can sing the song, but as the songwriter, you get money, too.

So there are already multiple systems in place to retain the rights to your song and make money from it. That’s how songwriters have been making money for decades.

Christopher Bingham (profile) says:

Rip off and exact copies

I definitely feel Erin’s pain, but I think she’s got a long road to travel to prove real infringement. It’s certainly a rip off in spirit and the arrangements are shamefully close, but most of the similarities are in the set of very common tools: straight eight piano, the vocal doubling, the “girl growl” thing that so many singers are using these days it’s really hard to tell them apart.

But in terms of exact melody, she might be out on a limb. That’s one of the problems with a seven note scale – SO much has already been done.

For what it’s worth, I think her poem is the better piece of work, and it really does sound like the guys who wrote it used it as a template and that’s a real shame.

But, well, BOTH pieces are not exactly original sounding.

If it was an argument between two writers, I’d be a lot more inclined to say figure out a way to profit from the controversy and let the lawyers go make money off someone else. But it APPEARS (and I’m working from what I read so I may be wrong) that the whole thing was financed by a billion dollar multinational company specifically to sell beer.

So IF she has a case (and I think it’s dubious, but I haven’t transcribed the notes for a match) this would be the kind of thing that supports an argument for copyright. She’s out there humpin’ the boonies playing her tunes and some mega corp comes along and uses her tune for a template, sells a bunch of beer and makes a ton of money for a “song stylist.” She’d be about 2/3rds of the way through her copyright, if we stuck to the original 14 year plan. It’s supposed to give authors enough time to establish their works in the marketplace.

What I don’t get, is the animosity toward Erin. She may or may not have a case, but it’s similar enough to rightly feel like she did the work. She’s working in the system we have, not the system many of us want. I wish her the best.

AlexNagy (profile) says:

Copyright Infringement?

I’ve seen several videos showing how most major pop-songs are formulaic to start off with, employing the same 4 basic cords and make music that essentially sounds the same with most of the differences in the vocals.

I’m inclined to agree, to some degree, that we shouldn’t go blatantly ripping off other people without at least giving them credit (I fully support CopyFree licensing fwiw), but at the same time if the music industry has made everything so similar anyways, where do we have room to claim any right to how any other song sounds (no matter how similar)?

Anonymous Coward says:

Disclaimer: I can’t see/hear the videos from this computer, so I’m taking the statements of previous comments and the vague “song DNA” concept stated by the author at face value.

My advice for what needs to be done:

1. Take a deep breath, count to 10, and accept that, even if you think that copyright should work this way, it doesn’t work this way. If the song actually was used as a jumping off-point, it seems like it’s at least reached the transformative threshold. Worst case, then, you got Zynga’d.

2. Drop the case, fire your lawyers. If they were worth their free 15-minute consultation, they’d tell you there’s no way you’ll win this.

3. Get a bit of perspective. It’s not the same song. It may have the same intangibles, but those aren’t (and shouldn’t be) admissible in court as definitive evidence. Furthermore, I’d recommend you seek humility to possibly accept that the “ripoff” was actually successful for some je ne sais quois that your “original” lacked. As is often mentioned on this site with patents, the idea is the easy part. Creating somehting people truly want is much harder, and ahrder to pin down.

4. Apologize. Be willing to admit that you didn’t see the whole picture, that you let your emotions cloud your judgement, and chose a poor course of action. The artists you’re suing are human beings, and coule be completely innocent. Assuming they’re innocent, the simple accusation could potentially ruin them, or at least leave a black mark on their reputation. Also, 50% of past and ongoing revenue would maybe be justified in an obvious case, where actual content were taken wholecloth and/or there were an actual breach of contract, confidentiality, etc. If anything were justified by “inspired,” it would be 10-20% tops, with a flat fee much more likely. I won’t dismiss your “soul searching,” but I imagine you felt that 50% was justified because your lawyers were talking in terms of 100%

In the end, maybe copyright should protect you. However, as it’s currently written, it really doesn’t. Continuing in this lawsuit will hurt goodwill, paint you out to be another copyright troll jealous of competitors, and only benefit the lawyers. Furthermore, you may want to be careful at that – if you’re going up agaisnt Sony, the argument’s as weak as it seems to be represented, and you’re demanding half of everything, an impatient judge could easily dismiss with prejudice and require you to pay their attorney fees.

Gene Cavanaugh (profile) says:

Let me understand

She wrote a song that didn’t make it. She undoubtedly used the content of others (not possible not to do so).
Someone took that song (perhaps – she thinks so, I am not convinced – I have friends who think Hitler was a good man – I am not convinced) and made a hit out of it.
AND SHE WANTS 50%? Tell her to get a job, and try to be useful.

Suzanne Lainson (profile) says:

Do her lawyers think it is winnable?

Something that hasn’t been raised yet is that unless she’s planning to pay her lawyers for the time no matter what the outcome, then they have to decide whether to pursue the case on the basis of a percentage of a win. If they don’t think it has a chance, I can’t see them bothering with it.

Maybe music lawyers don’t say, “I know we’re working for you, but you don’t have a chance,” but I would assume there is some discussion upfront about the costs of any lawsuit.

So, although some of you don’t think she has a case, the more important point seems to be whether her lawyers think she has a case and if she/they want to pursue it.

Coises (profile) says:

Thank you, Erin


Thank you for posting this. It was a brave thing to do in this forum. Being Techdirt, we went straight for the petty details… but I?m pretty sure you didn?t really want career advice, parallel song structure analysis or a critique of your team?s legal strategy.

I think that you were honest, not adjusting your text to say only what this particular audience would most easily accept; and that your purpose in writing was to get a crowd of IP-minimalists?with whom you generally sympathize?to understand that emotions can run pretty high when it?s your own work that been unceremoniously detached from you and appropriated by someone else. Artists don?t, and shouldn?t, get everything they want; but it?s not conducive to anything positive to dismiss their feelings without at least first understanding them: as if there were no reason on Earth they should care about the creations that will always, in their eyes, carry a little part of themselves along with them.

Against odds, I hope this somehow works out so that you and Zubak/Graus/Kachut can wind up in a state of mutual respect. I know this post is getting old now, but I still wanted to write to say that just because the natural comment fodder went in one direction, it doesn?t mean that nobody got your point or appreciated your honesty and your time and effort to express this.

Scott Wilson (user link) says:

copyright is tricky

I’ve unfortunately experienced some of the same emotions and possibly the same situation more than once unfortunately. Although I was not as articulate as you are in this blog, I did a comparison of a few of my songs with some others that are strangely similar in different ways. You can find it here: http://metapunker.tumblr.com/post/17021694256/yogagirlsync

Also, I did a video mashup of one of my songs with another song with the same title, concept and tempo at http://youtu.be/cgR7xbmg8W4

Wolf rimbaud says:

I’d stop now. You will not win this case. Only lyric and melody are copyrightable. The arrangement and others details are irrelevant. The melody and lyric are different enough as to constitute a totally separate composition. And it’s not like it was terribly original to begin with. It sounds like a thousand other cookie cutter things. You’re acting like a spoilt naive brat. Welcome to the music business.

Uth (profile) says:

I know i come to late to this discussion but idc if anyone reads it or not .
People that are telling her not to sue but get to work are same type of ppl like IP maximalist . When everyone should just let go of what they create or make there will be just one winner – some corporation with bigger marketing option then you and only thing they would have to do is listen to local markets , repackage anything new and offer it globally .
IP maximalist and IP minimalist are same type of stupid .
What we need is reasonable timetable of copyright rights . When discussion goes in either all or nothing you do not sound like promoting truth or what is right but just a philosophy know it all*s without any use to us in real world . Behaving like there is only 2 sides to any issue is death to any compromise or discussion .

flubaluba (profile) says:

Difficult decisions

I am sure it feels bad for your creativity to be used by someone else , even if it is not exactly the same. That is what life is about , someone takes something and changes it so that it sounds better, or in movies makes a new digital version that give more to the customer buying it. Yes it is hard but in all honesty life is full of things that people feel are unfair, would i have been upset if i was you, almost surely , would i have sued , most definitely, but my advise as someone who is not emotionally involved would be to look at the copying of your work as a compliment , yes ask for recognition and maybe a small fee and see how it goes , but don’t count on getting anything at all. I can see you would probably have let them use everything they did if they had only recognized you as the initial creator of the song, but in all honesty they created a new song, and that song for whatever reason was more successful, Learn from this and don’t let it stop you from creating, even use some of there ideas and lyrics if you want, look at there library of albums take what you think you can use from it and do it. You can gain more in the way of talent by experimenting with there lyrics and there music and improving on it in your style. Would that not be better payback than suing then…would i still sue them if it was me in your position, you bet i would.

Rubel (user link) says:

Hey I like how simply you explained the process.
Mine was pretty much the same and I can not agree more on following those steps to get more clients.
I also noticed that sometimes, unless you make it real clear by telling people you are for hire,
they may think you just blog for sake of blogging, lol, so any time I would remind my readers
I provide services it would bring more clients at the same time.Income planning

friederike Monika says:

Copyright infringement/theft

Unless it happens to you, please do not judge. I myself had an copyright/theft experience within the murky waters of the book publishing industrie and it’s horrendous. If the victim does not receive fair redress, it never goes away. I wrote “The Phoney Princess” (Amazon) about my life changing experience. I sincerely hope Erin has/ will receive what is rightfully her very own property.

John says:

>”I’ve always wanted to have a hit like “Touch The Sun”. And I thought I wrote one in 2003. It was such a great disappointment to me that no one noticed. There will never be enough people to notice me, I thought.”

I can see your huge mistake already there. You apparently failed to realize how important the name of your song would be. A name like “Touch The Sun” is a killer, compelling and catchy name. A name like “Slung-lo” is an awkward, unappealing, and alienating dud the size of Mt. Everest. This is a critical factor among others, and even though you may not have realized it, failure on that point is very serious even if you are not at fault in any way. In the future you may have the hit you would like if you focus as much on the name of the song as on the lyrics.

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