Should XTC Sue Toby Keith?


Another “SHOULD” post.  Another “You stole my 3-4-5-8” post.

My last post was about two (2) songs that both featured the same four (4) notes –  3-4-5-8  – prominently in their choruses/hooks.  The songs were

Toby Keith – Red Solo Cup (2011)

Sebastian Mikael – Last Night ft. Wale (2013)

I raised the possibility and reasons why these songs could be in litigation. I did NOT take a side – my purpose was to be illustrative and solicit responses.  I heard “Last Night” by Sebastian Mikael for the first time as I was driving home from the airport in Nashville Sunday night (February 23, 2014) and couldn’t help but notice the 3-4-5-8’s jumping out of the car radio.


Today I ask a related question and what would be a precedent to the Toby Keith v. Sebastian Mikael possibility  – namely, should XTC sue Toby Keith for stealing their 3-4-5-8?

XTC  Then She Appeared (1992)

Toby Keith  Red Solo Cup (2011)

XTC’s Then She Appeared (1992) is a song written and recorded almost twenty (20) years before Toby Keith’s Red Solo Cup (2011).  It also prominently features the 3-4-5-8 melody.  The 3-4-5-8 is the opening vocal and hook throughout the entire song.

The thirteen (13) examples of 3-4-5-8 in Then She Appeared, complete with associated lyrics, are heard here:

XTC – Then She Appeared  (1992)

0.22  then she appeared

0.31  then she appeared

0.50  cherubim cheered

0.59  then she appeared

1.08  then she appeared

1.26  know it sounds weird

2.02  then she appeared

2.11  then she appeared

2.30  all Edward Lear-ed

3.06  then she appeared

3.15  then she appeared

3.24  then she appeared

3.33  then she appeared

The sixteen (16) statements of 3-4-5-8 in Toby Keith’s Red Solo Cup (2011):

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


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) XTC v. Toby Keith 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.

7 Replies to “Should XTC Sue Toby Keith?”

  1. Ok, I think I can see where you are going with this. My thought would be that they likely wouldn’t have a case because it is obviously a very common sequence.

    It is doubtful Toby has ever heard this particular song before. I kind of like XTC, but haven’t listened to much since ‘Oranges and Lemons.’ If I like XTC and I don’t know this song I seriously doubt Toby has had enough time to refill his solo cup and listen to this song.

  2. Dave

    You might have figured out what I am doing! I think this several-step process will be fun.

    Good point – perhaps Toby Keith could claim he hasn’t heard XTC or that song. Or perhaps this is a common musical gesture.

    I got to turned on to XTC at Oranges & Lemons, by a very smart student of mine. When I was starting XTC, you were leaving! I love the post-O & L XTC but really got into the earlier ones as well. Brilliant stuff! We should talk XTC too. A good friend of mine/songwriter is obsessed with them as well and has written a really good song called, “XTC,” which he sent to Andy Partridge who also really liked it. I’ll try to get you a copy.

    Thanks for your comments!

  3. Yeah, that would be cool to hear that song. Now if your friend could get Andy Partridge to get over his stage fright then that would be even cooler 🙂

  4. Hmm, can’t resist throwing out a few ideas to the master Dr. H.
    I agree with Dave about the access issue, and feel even stronger that Sebastian Mikael probably never had access to Toby’s song. I do see how this might be hard to prove or disprove. I seem to recall that the Plaintive has the burden of proving D’s access but I’m likely wrong. I’ll look it up.
    But on the style vs. melody issue… I think this might come under what a former prof of mine (B.P.) use to call the “heart and soul of the work”. Regardless of the being same melody if the style and feel of the song are different, the heart and soul of the song are different and not an infringement. If the melodies are not the same but the style and feel of the song are so similar that they have the same heart and soul, then there is infringement.
    Also I wonder how important it is, even though this is not a Fair Use issue, that the songs (at least Toby’s and Mikael’s) are in such different audience bases, that Toby’s income is not likely to be hurt by Mikael’s song. Hmm.

  5. Toby Keith did not write that song. I think you should get your facts straight before you start talking litigation. The songwriter(s) would be in question here, not someone who sang/performed the song.

  6. Dear Laura:

    If you read this carefully, you’ll notice that I did NOT say Toby Keith wrote that song and did NOT say XTC wrote that song. It is easier to refer to the recoding artist as they are usually better known.

    As recording artists who made money from the recordings, whether they wrote the music or not, they ARE parties in the lawsuit (as are publishers, records labels and possibly more).

    My facts are quite “straight.”

    As someone who has been involved in litigation in U. S. federal courts ( as well as international courts) for more than 20 years and witness to extremely frivolous lawsuits – lawsuits in which there are NO melodic similarities, no melodic and no lyric similarities, for example – this potential lawsuit has much more merit than many present and past cases in the courts.

    This is only meant as an intellectual exercise.

  7. That’s right Dr. H, you tell ’em. Not only an exercise, it’s darn fun! So maybe I didn’t know who wrote the songs… but we’re not filling out captions on legal petitions we’re playing Wheel of Infringement.
    Anyway, I’ve been re-thinking my “not a Fair Use issue” statement. Maybe one could argue that a four note melody falls under Fair Use.

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