By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
By Alice Laussade
By Scott Reitz
While Don Templin just chuckles at the mere mention of this lawsuit, so sure his clients are in the right, federal Judge Jorge Solis apparently thinks McKinley's claim has some validity and has rejected the defendants' motion for summary judgment.
Cases such as McKinley's are as commonplace in the music business as hit singles; they're the bitter fruit so many chart-making musicians must bite into somewhere along the road. Everyone from the Beastie Boys to the New Kids on the Block to John Fogerty to ZZ Top has been on the receiving end of a copyright infringement suit such as the one McKinley has filed against Raye, Schlitz, and Seskin--and they do not always emerge victorious. Hell, Fogerty was found guilty of plagiarizing his own song.
But McKinley's suit is particularly interesting, because even she admits in depositions that there are few similarities between her song and the one written by Schlitz and Seskin--the lyrics, for instance, are completely different, save for the same four words found in at least 190 other copyrighted songs.
Yet McKinley and her lawyers have found one well-regarded New York-based self-proclaimed "forensic musicologist" who has determined that both songs are "substantially similar" for a handful of reasons. And McKinley's expert is no slouch: Judith Greenberg Finell has testified on behalf of Michael Jackson, Julio Iglesias, and CBS Records in cases such as these.
The story begins in 1990, when McKinley's husband Rick was on temporary work assignment in Naples, Florida. According to her deposition, taken in May 1997, McKinley says she wrote "I Think About You" in 20 minutes in the kitchen of the couple's rented home and later recorded it at the studio of a friend, Terry Strange. Her husband and a neighbor, Elaine Shields, perform on the demo, with Suzi laying down lead vocals while the other two provide backup harmonies.
She says the purpose of the demo was "to use to get jobs in clubs [and] to let friends know how [her songs] sound [and] to give to people in case they would like to record it on their albums." It was, after all, her dream to become a professional songwriter; according to her deposition, McKinley wanted to shop her songs like a pro. Indeed, from 1990 through 1993, she entered her songs into the New Folk Concerts contest held during the annual Kerrville Folk Festival in the Hill Country, hoping to get discovered. She says she also submitted the tape to the folks who book Uncle Calvin's.
In her deposition, McKinley explains that in February 1992, her sister-in-law, JoAnn Snyder, told her that Collin Raye--then an up-and-comer in the country ranks, a No-Hat Act who dressed like John Tesh and sang like George Jones--was going to be signing autographs at the Kmart on Josey Lane in Carrollton. Suzi, who says she heard of Raye then but never his music, rounded up Rick and their two children and headed over to the store, bringing with them one of Suzi's demo tapes, which included her song "I Think About You."
When they arrived, Suzi recalls in her testimony, "we saw where Collin Raye was signing autographs. And Rick saw a gentleman leaning against the jewelry counter to the left of us, and he had...I'm not sure, it was a briefcase, but something business-like with him. And Rick said, 'I wonder if he's connected. Let's go ask him before we get in this line.' And we did."
That man, according to McKinley, was Steve Cox, Raye's longtime manager.
In her deposition, McKinley says she struck up a conversation with Cox, explaining to him how she was a songwriter looking to sell her demos. She says she handed Cox the three-song tape that included "I Think About You," and that his response was, at the very least, enthusiastic.
"I can't remember the exact conversation," she says in her testimony, "but basically he accepted the tape, said they were coming out with a new album soon, and could I send him any more music, and he would be glad to listen to anything else I had." She says he then gave her his card. Included in McKinley's legal documents is a copy of Steve Cox's business card, on which Suzi had written the words Colin Ray, misspelling the musician's name.
But Cox, in an affidavit signed July 25, 1997, says he has no memory of meeting Suzi and Rick McKinley in 1992. "The first time I recall hearing Ms. McKinley's song was in connection with this lawsuit," he insists.
Yet in his own deposition, taken September 16, 1997, Cox says it's possible he might have received a tape from McKinley. He explains that it was a common occurrence to have tapes handed to him all the time; he would even listen to them on occasion. But, he insists, he never sent any of the unsolicited demos to producers or anyone else connected to the music business.
Despite Cox's alleged reaction to McKinley's demo and his request for more songs, Suzi never sent him any more. The reason? "Stupidity," she explains in her deposition.
She almost forgot about the incident until 1995, when she was at a Blockbuster Music store looking for a Jimmy Buffett CD and encountered what she calls a "big mound of cassettes" of the latest Collin Raye album, I Think About You. "My first reaction was, I was very suspicious that he would name an album I Think About You given the fact I gave him a song 'I Think About You,'" she says.