Should Toby Keith Sue Sebastian Mikael?


Should Toby Keith sue Sebastian Mikael?  Have you heard Toby Keith’s 2011 song, “Red Solo Cup?”  Have you heard Sebastian Mikael’s 2013 song, “Red Solo Cup?”

Toby Keith – Red Solo Cup (2011)

Sebastian Mikael – Last Night ft. Wale (2013)

Toby Keith’s Red Solo Cup features the lyrics, “red solo cup, I fill you up” and “red solo cup, I lift you up” always sung to the same melody, an ascending four-note pattern that is the hook:  -3-4-5-8.

The 3-4-5-8 melody is heard sixteen (16) times in Red Solo Cup.

Sebastian Mikael’s Last Night features the lyric, “four shots ago,” always sung to the same four-note pattern as heard in Red Solo Cup, used in all four (4) choruses, and in a similar prominent manner as well:  3-4-5-8.

The 3-4-5-8 melody is heard four (4) times in Last Night.

If both songs use the same pitches but one was recorded and released earlier, shouldn’t the publisher(s) of Toby Keith’s Red Solo Cup sue the publisher(s) of Sebastian Mikael’s Last Night ?

The sixteen (16) statements of 3-4-5-8 in Toby Keith’s Red Solo Cup:

0.32  red solo cup

0.35  I fill you up

0.44  red solo cup

0.47  I lift you up

1.19  red solo cup

1.22  I fill you up

1.31  red solo cup

1.33  I lift you up

2.21  red solo cup

2.24  I fill you up

2.32  red solo cup

2.35  I lift you up

2.44  red solo cup

2.47  I fill you up

2.56  red solo cup

2.59  I lift you up

The four (4) statements of 3-4-5-8 in Sebastian Mikael’s Last Night:

0.46  four shots ago

1.54  four shots ago

2.37  four shots ago

3.40  four shots ago 


To reiterate some of the similarities between Red Solo Cup and Last Night:

Toby Keith sings 3-4-5-8 sixteen (16) times throughout Red Solo Cup.

3-4-5-8 is the hook.

Sebastian Mikael sings 3-4-5-8 four (4) times throughout Last Night.

3-4-5-8 is always an important part of each chorus.

Both songs feature the same four (4) notes –  3-4-5-8.

Toby Keith recorded and released Red Solo Cup well before Sebastian Mikael recored and released Last Night.

Why wouldn’t Toby Keith’s publisher(s) sue Sebastian Mikael?


Are four (4) prominent and clearly-heard notes in common between songs reason enough to instigate a copyright infringement lawsuit?  One answer could be found in comparing this hypothetical (or not) Toby Keith v. Sebastian Mikael music copyright infringement case to the actual Marvin Gaye v. Robin Thicke copyright infringement case in which NO notes were in common between the songs.

If one can sue when the similarity is only STYLE and not melody, surely one is even more likely to sue when the similarity is MELODY and not style.

(Do any/all the tags in this post have any bearing on the merit of this potential copyright infringement lawsuit?)

As always, I welcome your  comments.

6 Replies to “Should Toby Keith Sue Sebastian Mikael?”

  1. No fair! You’re the expert here….I’m just reading to learn 🙂

    Seriously, though, I’ll be curious to see what you think. I was surprised that the Blurred Lines case was settled based on what you had thought would happen, so who knows with this one?

  2. Hi Dave:

    I think Blurred Lines settled not because of the merit of the Marvin Gaye case against Robin Thicke but because 99% of these settle because it is easier – it takes much less time and money. Some of these cases can drag on for 8-10 years (I’m in one of those now and I’ve been in the 6-year denominations too!).

    As to the 3-4-5-8 I posted, I have a strong opinion but I just want to get the opinions of others. I like to understand how others think. I’m way too good at knowing how I do! 🙂

    I have made a decision – I will reveal and explain how I think about this but only after I do a few more posts about this. Not good of me in some ways – it’s like the news teaser – “Breaking News” or “news you can only see here on News Five!”

    The answer will make a lot of sense, I think, but only after a few more posts like this.

    Do you find my writing (style/format) about these two songs clear and understandable? I’m hoping for that!

    Thanks for writing, Dave!

  3. Thank you, Michael, My Copyrights class took their midterm last night, now, if you don’t mind, I think we are ready to study some real examples, like maybe this one. C ya soon…

  4. Thank you, Michael, My Copyrights class took their midterm last night, Now, if you don’t mind, I think we are ready to study some real examples, like maybe this one. (We’ve been looking at some of the biggies of course)
    I will post the class feedback in this and the future related posts you reference above, if you like, and if they’re interesting, ha.

  5. Hi Jody:

    I’d love to get your input and your students’ input into my posts. I’ll be happy to answer and/or explain anything as well. Any ideas/suggestions you or your students will be most welcome.

    And because I live in Nashville, I’d love to come speak to your class if there is interest or you think I can be of help.

    Thanks so much!

  6. Thank you so much Micheal! Sorry about the double post above… sometimes the tablets don’t handle the java of web applet life too well. I see you posted new info on this case, per XTC. I must head that way. Thanks again, and I will be in touch this weekend about your generous offer to speak at our school.

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