@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
Lotte Kestner, a singer/songwriter, posted to Twitter a message for Naughty Dog and its vice president, Neil Druckman, pointing out that the cover of True Faith used in the trailer is a “replica” of her cover, which she released in 2011 on her album Stolen. “I wrote original parts not in the original song that are copied exactly by whoever covered it,” she said. “I am heartbroken.”
To compare, it’s worth listening to Kestner’s cover, the trailer, and the original New Order song. Three minutes and thirty seconds into Kestner’s version, there are some humming vocals that fit with the slower, acoustic stylings of the cover. A similar vocal segment is sung by Ellie in the trailer at the 45 second mark. Importantly, the original New Order track – a piece of synth music – does not feature these humming-like vocals. It’s this difference that has led Kestner to believe that the trailer has copied her version of the song.The legal status of this is murky. While currently unconfirmed, it is likely that copyright permission for the trailer was sought from New Order rather than Lotte Kestner. So, despite the song not being Kestner’s original work, does she have any legal grounds over her arrangement?
A similar case can be found from back in 2013, when Jonathan Coulton – yes, the guy who wrote Portal’s Still Alive – found that his folky cover of Sir Mix-A-Lot’s Baby Got Back had been covered identically by the Fox TV show Glee. Take a listen to his cover and the Glee version. It’s a very similar arrangement, right down to the banjo. When interviewed about it by Wired, Coulton said “[Fox] got in touch with my peeps to basically say that they’re within their legal rights to do this.”
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“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,” he explained.
It appears, then, that Lotte Kestner may be stuck fighting in a very unclear area of copyright law. So far, Naughty Dog has yet to respond publicly.
Matt Purslow is IGN’s UK News and Entertainment Writer. You can follow him on Twitter.