A music artist has accused developer, Naughty Dog, of stealing her cover of the song, “True Faith”, by New Order, and featuring it in a recent trailer for The Last of Us Part II.
The artist is Lotte Kestner, who posted a message to Naughty Dog and its vice president, Neil Druckman, and pointed out that the cover of the song in the trailer is a replice of her own, which she released in 2011.
“I wrote original parts not in the original song that are copied exactly by whoever covered it,” she explained, “I am heartbroken.”
By listening to the trailer’s version, Kestner’s cover, and the original song, you can definitely hear what Kestner is referring to. In her cover of the song, around three minutes and thirty seconds, you can hear some humming vocals that fit with the slower, acoustic sound, and something that does not appear in the original song. A similar humming vocal is sung by Ellie around the 45-second mark of the trailer.
The legality of this issue, however, is a little murky. It is likely that copyright permission was asked for with New Order, and not Kestner. This begs the question if she has any legal ownership over it, since she was covering the song in the first place.
A very similar case happened in 2013, when Jonathan Coulton’s cover of Sir Mix-A-Lot’s “Baby Got Back” was copied, nearly identically, by the television show, Glee. The arrangement is nearly the same, down to the banjo. After this came to light, Coulton said that: “[Fox] got in touch with my peeps to basically say that they’re within their legal rights to do this.”
“It seems that because of the compulsory license I purchased when I made a cover of this song, the arrangement itself is not protected under copyright, although it’s the darkest gray of the gray areas [of the law]… While there may be some weird offshoot of the law, it doesn’t seem like something where a little guy could sue to get any satisfaction.”
It looks like Kestner could be stuck in a very unclear part of the law. Naughty Dog has yet to comment on the situation.
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