Naughty Dog Accused of Stealing Cover Music

THE BIG PICTURE

Naughty Dog (the game dev) and/or Sony Computer Entertainment (the game publisher) allegedly copied a cover song in a Last of Us Part 2 promo video. However, if they had a license from the original song owner, copying the musical arrangement of the cover artist (as opposed to the actual sound recording) wouldn’t be copyright infringement. It just feels real bad.

THE MUSIC IN QUESTION

Lotte Kestner, a singer-songwriter from Seattle, has accused Naughty Dog of copying her cover of New Order’s True Faith in a trailer for The Last of Us Part 2:

@Neil_Druckmann @Naughty_Dog hey are you aware that the true faith cover you put in your last of us 2 trailer is a replica of my cover that came out 10 yrs ago? I wrote original parts not in the original song that are copied exactly by whoever covered it. I am heartbroken.

— Lotte Kestner (@lottekestner) June 4, 2020

You can listen to the original song by New Order here.

You can listen to Kestner’s cover here.

You can listen to Naughty Dog’s version in the official game trailer here.

In particular, compare the vocals at the 45 second mark in the trailer with the segment in Kestner’s cover around 3 mins. 30 seconds.

THE LAW OF SONG COVERS

The Copyright Act attempts to strike a balance between rewarding the creative labor of authors of original works, and promoting further creativity by allowing public access to their works. For music, specifically, there is a “compulsory licensing” system that limits the exclusive rights of the copyright owner in an original musical work. Under Section 115, a musician who wants to make and distribute a sound recording of a previously published musical work — i.e., make a cover — may obtain a compulsory license in the original work simply by complying with the statutory requirements, including timely and sufficient notice to the owner of the copyright in the musical work and payment of statutory, or otherwise negotiated, royalties.

A compulsory license includes the right to make a new musical arrangement, so long as the basic melody or fundamental character of the work is unchanged. The compulsory license does not give any exclusive rights in the new, derivative musical arrangement, however, unless the cover artist has the express consent of the copyright owner.

LOTTE AND NAUGHTY DOG

Unless Lotte obtained express consent from New Order, she would not have any rights to her arrangement — i.e., her cover. While she has a right to prevent unauthorized copying of her sound recording, it does not sound like Naughty Dog copied any of her actual recording. Thus, even if Naughty Dog did copy her arrangement and had its own artist record it, there would be no copyright infringement. Give the tracks a listen and decide for yourself.

[Credit to Matt Purslow at IGN for his article on this topic]