A stink over 'Think'
There are 192 copyright registrations sitting in the Library of Congress for the song "I Think About You"--who says all of the good ideas are taken? There's a 1977 Patti LaBelle track titled "I Think About You"; another from 1989 by Michael Bolton; one more from 1979 by Sinatra knockoff Al Martino; and the Stylistics' 1977 album Wonder Woman features a song titled "I Think About You." But most of those copyrights belong to unknown would-be writers whose songs will never be appreciated by what would surely be an adoring public. Poor Hugo Peretti of Englewood Cliffs, New Jersey, and Michaelangelo Nocentelli of New Orleans and Carl Dodson of Los Angeles--they have all filed copyrights on a song titled "I Think About You," but all they have to show for their hard work is a piece of paper from the United States Copyright Office and a few dashed dreams of becoming a somebody in this business they call show.
Add to their ranks a housewife from Carrollton named Suzane McKinley, who, in July 1992, registered three of her compositions with the Library of Congress: "Rock and a Hard Place," "Wishful Thinking," and, yes, "I Think About You." She was 38 at the time, the wife of an airplane mechanic and mother of three--and an aspiring singer-songwriter who longed to get her music heard. She says she has been writing songs since she was 16 and has "over a hundred" to her credit; Suzi McKinley also says she has entered her compositions into myriad contests, including a new songwriter competition held each year in conjunction with the Kerrville Folk Festival in the Hill Country. "I Think About You" is but one of the songs she sent to Kerrville--and, she claims now, to at least one producer in Nashville.
You can also count among those who have written a song titled "I Think About You" two of the best-known songwriters around Nashville. One is Steve Seskin, who has written for Waylon Jennings, Pam Tillis, Alabama, and John Michael Montgomery. The other is Don Schlitz--the author of 24 number-one singles and winner of two Grammys for Country Song of the Year as well as three Country Music Association Song of the Year nods. Schlitz is also a four-time winner of ASCAP's Songwriter of the Year award and a member of the Nashville Songwriters Hall of Fame since 1993. Listed among his Grammy-winning or nominated songs are Kenny Rogers' "The Gambler," Randy Travis' "Forever and Ever, Amen," Mary Chapin Carpenter's "I Feel Lucky," and Alabama's "Forty Hour Week"; his compositions have also been performed by the likes of Garth Brooks, the Judds, Reba McEntire, Alison Krauss, and Tanya Tucker. And, last but not least, Collin Raye, the soap-opera-handsome Greenville resident who, in 1995, titled his platinum-selling album I Think About You after the Schlitz-Seskin song and included it on his latest greatest-hits collection.
But Suzi McKinley doesn't think it's Don Schlitz's song. Or Steve Seskin's. Or Collin Raye's.
No, she claims it's hers, and that all three men and Raye's longtime manager, Steve Cox, conspired to steal "I Think About You" from her when she innocently handed Cox a demo of the song five years ago--a song with different words, a different melody, almost a different everything. She claims they used her song to make Collin even more famous, even more successful--using her, just a housewife from Carrollton who waited her whole life for a shot at making a little money by making a little music.
So she has taken Raye, Schlitz, Seskin, Cox, and Sony Music Entertainment, Inc. to federal court in Dallas, where they are now battling over custody of the song. And it has turned into a fairly massive fight: McKinley filed the suit almost two years ago, on August 7, 1996, and the case is set for trial in February 1999. Meanwhile, all parties involved in the suit are warring over issues of damage-related discovery--that is, how much money did Raye, the songwriters, and Sony Music make from the song.
Don Templin, the Dallas-based attorney at Haynes & Boone who's representing all the defendants, says his clients prefer not to discuss the pending case; instead, he says, "the pleadings speak for themselves." Gerald Conley, McKinley's local attorney, also doesn't want to comment or have his client talk about her decision to file this suit. "That's what juries are for," Conley says.
But McKinley, properly frustrated by two years of litigation, decided to vent a little, even though it was against her attorney's advice. In a brief interview, she explains that she's no housewife with a hobby and that her songwriting means the world to her. "I play almost every weekend now," she says, listing Cafe Brazil, Java Jones, Routh Street Brewery, and a few other places where she and her husband have performed as Suzi and Rick. "I think they thought, 'This girl doesn't copyright anything,'" McKinley says--adding that she would have been happy to be a third writer on the song, "anything to get into Nashville. It's so unfair. I mean, the song won a lot of awards. It was a top-10 hit, it won [the Academy of Country Music's] video of the year award. I mean, I love music. I love to play it. But my favorite thing is to write. If I never entertained again, it would be fine. I just want to write."
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.
McKinley says she listened to the song before ever leaving the store, and that she immediately thought the songs were similar, aside from the title. She was "very upset" and took the tape home and immediately called her husband and a few other friends, at least one of whom thought the songs were more alike than different.
"I give tapes out all the time, so I don't think about it," she said during her interview with the Observer. "I don't even research who I give my tapes to. But when I was going after that Jimmy Buffett tape, I had this feeling to look at a Collin Raye tape, and when I saw the tape and saw 'I Think About You,' it just scared me to death."
The big question is: What happened in the interval between the alleged Kmart meeting and 1995, when I Think About You was released?
Well, according to Don Schlitz and Steve Seskin, they wrote themselves a hit single--without ever hearing McKinley's demo.
Schlitz--a Durham, North Carolina native who moved to Nashville more than 20 years ago to pursue his own songwriting ambitions--says he began working on the song in January 1993. "I had an idea to write a song about a father thinking about his daughter, and the effects of the world on her life," Schlitz explains in his July 24, 1997, affidavit. He says that he and Steve Seskin met at 10 a.m. on January 19, 1993, and completed the music and lyrics.
Ten days later, Schlitz and Seskin took two songs, including "I Think About You," into County Q Productions in Nashville to cut demos; according to a receipt from the studio, the songwriters were charged $315 for the session.
A few days after that, the pair had their publishing companies begin pitching the song to various artists around Nashville--among them, Garth Brooks, Tim McGraw, Tanya Tucker, Neil McCoy, and Collin Raye. According to pitch logs provided by Schlitz for the lawsuit, Raye initially passed on the song, as did Brooks, Tucker, and most everybody else who heard it. Raye eventually took a copy of the demo on June 21, 1993.
Schlitz says Raye initially recorded the song for his 1994 album extremes, but it didn't make the final cut; he tried again a year later, and it became the title track to his fourth album.
Yet Schlitz insists that "while I am proud of the success Mr. Raye has achieved with my song," he has never met Raye or even Steve Cox, and that there was no way in the world he could have ever heard Suzane McKinley's "I Think About You" even if she had given it to Cox in 1992--which Cox denies.
Schlitz says the songs speak for themselves. Where his song is about a father thinking about his daughter ("You...eight years old/Big brown eyes and a heart of gold/When I look at this world, I think about you"), McKinley's is about a woman pining away for her husband ("Night coming on, and I'm in bed/Thoughts of you dancing in my head/I think about you").
"I was unaware of Suzane McKinley and her song entitled 'I Think About You' until this lawsuit was filed," Schlitz claims in his affidavit.
The Bronx-born Seskin, who now lives in Northern California's Bay Area, says much the same thing in his deposition, adding that he included 'I Think About You' on his 1993 self-released album To Be Who I Am, which he sold mostly at shows; in addition to being a songwriter, he's also a recording and touring musician (the first of his 13 albums was released in 1975).
Seskin and Schlitz maintain they have never met Raye or Cox--but Gerald Conley, McKinley's attorney, says that's unimportant. Rather, he contends in legal documents that the four men, longtime music-biz vets, know many of the same people, any one of whom could have passed along the song that McKinley says she handed to Cox in that Kmart jewelry section.
Conley points out that John Hobbs produced every single Collin Raye album and that Hobbs became a close friend of Cox's. Conley maintains that Seskin, in his deposition, says he wrote "two or three songs" with Hobbs--and "boy," Seskin adds, "they weren't very good." Nonetheless, Conley wants to connect the dots from Seskin back to Hobbs back to Cox back to his client. (Seskin has also performed at Kerrville numerous times, in addition to teaching some songwriting classes, and Conley is trying to imply that he might have heard "I Think About You" then, since McKinley had sent the tape to the festival--yes, it's a long stretch.)
In addition, McKinley says in 1991 she went to Nashville to meet with Mark Gray, a "music producer" who worked for Tom Collins Music Corporation, which handled such clients as Barbara Mandrell and Ronnie Milsap. (In reality, Gray was just a house songwriter for Collins; he was a former Columbia Records artist whose career never became much of one.) McKinley says she gave Gray a copy of "I Think About You" and insists it's possible he could have passed it along to someone else he knew on Music Row. Gray, who still lives in Nashville, no longer works for Collins and couldn't be reached for comment.
But "that defense is not going to fly," says one veteran Nashville producer who has endured his share of frivolous lawsuits. "Look, a legit songwriter wouldn't take the chance of listening to a song from someone they'd never heard of, and guys like this don't have to resort to stealing ideas from unknown writers. Hell, every time I have a hit, I get sued. It's what America's about."
But McKinley's holding the trump card, for now: the statement from Judith Finell that says there are four similarities between her song and the Raye hit. According to her affidavit, both songs have "highly similar" hooks--meaning, that when both songs get to the line "I think about you," their lyrics and melodies sound the same. And, she writes, "in each song, every verse and chorus ends with the hook." In essence, she's saying, both McKinley and Raye sing the word "about" in sort of the same way.
But Finell's seems a tenuous argument. Sure, the words are the same, but what about those other songs sitting in the Library of Congress? Also, Finell contends that "both songs share several distinctive creative features and depart similarly from other works within their genre"--that is, they're both about an "absent second person." Quick, name a song that isn't.
Finell refuses to comment specifically on her testimony--Conley's orders--but she does say that it's unlikely this case will go to court.
"I'd say about 80 to 90 percent of the cases I've been asked to give opinions in are settled before they get to trial," she says from her New York office. "Very, very few cases I see or other experts like me see actually end up in trial, because of the expense or the risk of liability on both sides. When one side is a little guy and one side's a big guy, they usually settle well before they go to court. The burden is on the plaintiff to prove the defendant had access to it."
So this could go on forever, or it could be settled next week--like that producer in Nashville says, "You don't have to be right to think you're right," and lawsuits are as American as country music. McKinley will keep playing in small coffee houses around town, and Raye will keep playing to the Fan Fair faithful who would never believe the man behind the American flag sweatshirt on the cover of his debut album would ever steal from one of them. It would make a damn fine country song, though.
It'd be Rhett Miller's dampest dream come true: There's a chance that when Billy Bragg tours this summer in support of his forthcoming album Mermaid Avenue--a splendid collection of previously unheard Woody Guthrie lyrics put to music written and performed by Bragg and Wilco, featuring guest Natalie Merchant--he will be backed by his Elektra labelmates the Old 97's. Elektra publicity will neither confirm nor deny this nifty rumor--"it's a possibility," is all Elektra's Brian Gross will offer--but Wilco is scheduled to be in the studio this summer recording the follow-up to its 1996 double-disc gem Being There, which would make the Bragg tour impossible. Imagine: Rhett Miller singing Woody Guthrie lyrics and Jeff Tweedy music as he stands next to Billy Bragg. The mind reels...
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