Erin McKeown and Slung-lo: Whose hit is it anyway?

by David D.

Where does inspiration stop and infringement begin?

Erin McKeown is a two-time MMT Fammy winner, featured performer, and former Free Friday pick. And she writes hit songs. Allegedly. You’ll see.

Her essay below originally appeared in Techdirt, where it garnered over 140 comments, split between supporters and detractors of her copyright suit. Over on Gearslutz.com, someone called out a few of the more egregious anonymous comments under the misdirected title “Why does TechDirt Hate Musicians?” For instance:

Anonymous Coward, Apr 12th, 2012 @ 4:09pm

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.

So the meta-battle between copyright, copyleft, and trolls took over, with Mike Masnick’s defense of the original posting pulling in more than twice as many reactions as Erin’s essay. We intend to turn the attention back to Erin’s individual case, so let’s start with her story.


A HIT IS A HIT IS A HIT, RIGHT?

photo by Nancy Palmieri

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.

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.

~ Erin McKeown


 

Here are the two songs available for side-by-side comparison:

YouTube Doubler

All creative work may be derivative, but at what point do influence and inspiration become infringement?  We put that question to a group of listeners including a music professor, a professional musician, a music student, and two music fans.  The first reaction after hearing a few bars of “Slung-lo” was: “How is that song not being used in an Apple commercial?”

More on that later, first we’d like to hear your opinion.  Take the quick, 3-question MMT survey here and let us know how you would rule on Erin’s case.  Let’s assume the case is heard in the US — if there are any Czech copyright experts out there, speak up in the comments below.  Here are some salient points on US law from Alan Korn:

HOW IS INFRINGEMENT PROVED IN A COURT OF LAW?

To establish copyright infringement in a court of law, a copyright owner must establish proof copyright ownership and proof of copying. Proof of copying may be established either by direct evidence of copying (i.e., an admission) or by indirect evidence showing 1) access to the original work; and 2) “substantial similarity” between the original and allegedly infringing work.

Courts will not find copyright infringement if two people independently come up with the same or a “substantially similar” work. Also, the less original a copyrighted work is, the less protection it may be entitled to under copyright law.

HOW DOES ONE SONG “INFRINGE” ANOTHER?

Proving access to a popular song is usually not difficult in copyright litigation. If two works are strikingly similar, some courts may even infer that a defendant had access to the copyrighted work. Whether a work infringes another usually turns on the issue of substantial similarity. In the case of music, courts have ruled that infringement may occur where the “whole meritorious part of the song” is incorporated into another song, without any substantial alteration.

One of the more famous U.S music infringement cases involved ex-Beatle George Harrison, who was found by a jury to have “unconsciously” copied the Shirelle’s composition “He’s So Fine” in his 1971 hit “My Sweet Lord.” Although George Harrison’s hit was found to be strikingly similar to the Shirelle’s song, it is even possible to infringe another song if only just a few notes are “borrowed.” Because the most memorable part of a song may be quite brief, infringement of a musical composition may be found even where only a small portion of a song was copied.

~ Alan Korn

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