Kvartal 95’s song about Patron’s dog – a parody or a reworking

On December 31, 2023, 1+1 TV channel broadcast the premiere of the Evening Kvartal 2024 New Year’s Concert, which was marked by two scandals on the morning of the first day of 2024.

The first concerned a number about an IDP from Skadovsk. In it, Iryna Gatun, an actress of the Black Square Theater and a resident of the Kvartal 95 studio, portrayed a resident of the occupied city in the Kherson region, who appeared to the audience as a somewhat short-sighted and uneducated Russian-speaking woman who makes vain attempts to switch to Ukrainian. In the number, Iryna Gatun’s character makes mistakes that are atypical for those who switch to Ukrainian, distorting the meaning of words. The most outrage was caused by the heroine’s phrase about where she came from – “Siskadovsky.” The actress’s partner in this number was Yuriy Velykyi, who played a native of western Ukraine who speaks pure Ukrainian.

The issue caused a significant public outcry among Ukrainian citizens and received a large number of negative reviews. And the editor-in-chief of the Kherson-based newspaper “Kavun.City” Yevhenia Virlych filed a complaint against 1+1 TV channel with the Commission on Journalistic Ethics. In the complaint, she states that Skadovsk Mayor Oleksandr Yakovlev publicly addressed the issue on Facebook and expressed his indignation, while the flash mob “Skadovsk speaks Ukrainian” has already been supported by social media users from different cities.

The actors of the show, Yuriy Velykyi and Iryna Gatun, issued their apologies almost immediately, which society has already characterized as “excuses” rather than sincere apologies. Thus, Yuriy Velykyi emphasized that: “…the main message of this issue is that there is no shame in making mistakes. It is a shame not to speak your native language in your country,” Velyky wrote on his Instagram.

Instead, Iryna Gatun recorded a video apology and posted it on her Instagram, in which she asked for forgiveness from those who were really offended by the number, but she also called those who, in her opinion, “deliberately raise hate” “paid creatures.”

For its part, 1+1 media apologized and assured that the New Year’s Kvartal episode would be re-edited and published on the channel’s platforms without the issue.

“We understand the public outrage and apologize to the audience that was affected by this issue. The creative team that created this issue did not want to offend the feelings of Ukrainians in any way. In the issues of Evening Quarter, the team jokes at themselves, raises topical issues, sometimes hyperbolizing them, because this is one of the laws of humor. This was just such a case,” 1+1 media said in a statement to detector.media.

But, as we know, what goes online stays online forever, because there will always be those who will download everything to personal media, select the relevant number and upload it back, and it will appear on many other resources. Therefore, all the channel’s attempts to mitigate the consequences of this number by removing it from the full version of the concert will be very futile. As they say, “the cat is already out of the bag”.

Kvartal 95 also commented, but not personally, but through 1+1 media, in which the studio assured that with their number they wanted to show that “it is not terrible to make even gross mistakes when switching from Russian to Ukrainian, it is more shameful to continue speaking the language of the enemy,” the studio said in a statement, which, in fact, completely duplicates the content of the actor Yuri Veliky’s excuses.

And while this situation with the number about a displaced person from Skadovsk of the Kvartal 95 studio and its actors, who, by the way, have been included in the Myrotvorets database since January 3, 2024, on the basis of accusations of participation in acts of humanitarian aggression against Ukraine and public abuse of Ukrainian citizens under Russian occupation, concerns mainly the moral and social aspect, another scandal around the studio’s New Year’s issue directly relates to the fact that the studio’s authors violated the norms of the current legislation of Ukraine in the field of intellectual property. We are talking about the performance “Song from the wife of Dog Patron” in the same “New Year’s Concert of the Evening Kvartal 2024”.

The author’s heiress was not asked for permission to alter the text

For the performance “Song from the wife of the dog Patron”, the authors of the Kvartal 95 studio reworked the lyrics of the song “Sokolyata” by the famous Ukrainian composer and singer-songwriter Vyacheslav Khursenko, after which the daughter and copyright holder of the author’s works publicly declared copyright infringement and called on the public organization “Ukrainian Agency of Copyright and Related Rights” (UACRR), which manages Vyacheslav Khursenko’s property rights, to take radical action against the violators:

“…How could anyone think of combining this with a historical work.

Representatives of the Ukrainian Agency of Copyright and Related Rights, Valeriy Kharchyshyn, I am waiting for your radical actions, and society will be waiting for this…”, – Maria Khursenko wrote on her Facebook page.

In particular, the revised text contains the following lines:

“Every night I have a dream that Patron was an ordinary dog. He sniffed dogs’ tails and chased birds. When he felt inspired, he would kick a neighbor’s leg and leave a pile on the lawn.”

At the concert, the song was performed by the singer Laliko on behalf of the “wife of the dog Patron” in the context of how disappointed she was with his popularity.

It is worth noting that the song “Sokolyata”, the lyrics of which were rewritten, became a landmark in the work of Vyacheslav Khursenko, whose life was tragically cut short on September 08, 2009, while fishing in Volyn (the singer died of a diabetic coma). It was this song that made the singer-songwriter popular in the 1990s. He wrote it when he was driving from Sokal to Lutsk in forty minutes (!) for his “godfather” on the stage, Vasyl Zinkevych. Although the famous singer included this composition in his repertoire, for some reason he was in no hurry to perform it, so Khursenko recorded his own version, which immediately began to take first place in the charts of the time.

Position of the UACRR and response of the Kvartal 95 Studio

Maria Khursenko’s public appeal on her Facebook page to representatives of the UACRR, among other things, forced the organization to provide its comments on the legality of the reworking of the lyrics of the song “Sokolyata”, in particular, to relieve tension between the heiress herself and users (viewers) of the number “Song from the wife of the dog Patron”, which caused a wave of public outrage.

The UACRR, which collectively manages the copyright to the song “Sokolyata”, referring to paragraph 9 of Article 22(2) of the Law of Ukraine “On Copyright and Related Rights”, notes that without the permission of copyright holders and free of charge, but with the indication of the author’s name and source of borrowing, it is allowed to use a musical work to create a work in the genre of parody based on it.

At the same time, in response to a request from the online media outlet hromadske to comment on the statement of Khursenko’s daughter, Kvartal 95 also relied on the above provision of the law, claiming that the lyrics were altered legally:

“When creating a musical parody of the song ‘Sokolyata’, Kvartal 95 LLC should not have received any permission from the copyright holders of this musical work. The parody of the said work was created and used in accordance with the requirements of the current legislation,” Kvartal 95 said in its response.

However, the UACRR emphasizes that the studio did not fully comply with the norms established by law, as it did not indicate the name of the author of the original work and the source of borrowing when using the rework, which violated the author’s personal non-property rights, namely, according to part 1 of paragraph 1 of Article 11 of the Law of Ukraine “On Copyright and Related Rights”, the right to demand recognition of one’s authorship by properly indicating the name of the author in the original and copies of the work and for any use of the work, if practicable.

It should be noted that, according to Ukrainian law, the author’s personal non-property rights belong only to the author and cannot be transferred (alienated) to other persons and do not inherit. At the same time, in accordance with paragraph 2 of part 4 of clause 1 of Article 32 of the Law of Ukraine “On Copyright and Related Rights”, the author’s heirs have the right to protect the author’s personal non-property rights, in particular, to counteract distortion, misrepresentation or other alteration of the work, as well as any other encroachment on the work that may harm the author’s honor and reputation.

Thus, the UACRR, although it manages the author’s property rights, not his personal non-property rights, assures in its statement that it is particularly considering this case of the alteration of the work “Sokolyata” and will provide Maria Khursenko with support and legal assistance in resolving the issue.

Is everything so clear-cut?

In our opinion, it is possible to argue whether a remade work is really a work in the genre of parody. According to the above provision of the Law of Ukraine “On Copyright and Related Rights”, namely paragraph 9 of Article 22(2), a work in the genre of parody is defined as a work that is comic, satirical in nature in relation to events, persons or a legally published work or part thereof, created, inter alia, as a result of creative processing of such a work or part thereof, and causes associations with events, persons, work or part thereof.

If we consider the humorous content of the alteration in relation to the events – namely, the fact of the insane popularity of the dog Patron, then we can still somehow justify such an alteration, but if we turn to the next part of the above provision, it indicates that the satirical nature of the altered text must relate to a person, and in our case it is a dog.

However, we want to draw attention to another aspect of the processing of the song “Sokolyata”, namely the musical component. It should be noted that in the original, the song is performed by a man, i.e. the musical part is written in the appropriate key for a man’s voice, while in the number, the reworked song is performed by a woman. Accordingly, it can be assumed that the work (musical component) was reworked by way of arrangement.

What does the Law of Ukraine “On Copyright and Related Rights” say about arrangements? Pursuant to Article 17(1) of the said Law, an arrangement is a derivative work, which in turn is the result of creative processing of another work without prejudice to its protection, i.e., in order to carry out the relevant processing (arrangement), it is necessary to obtain permission from the original author (or his heirs) for such processing.  Thus, at least for the arrangement of the song “Sokolyata”, Kvartal 95 should have obtained permission from the heiress Maria Khursenko.

We do not undertake to interpret the law or look for any ambiguity or hidden meaning. The degree of “parody”, let’s call it that, and the fact of illegal processing of music by way of arrangement can only be determined by the court (with or without the help of relevant experts) if the heiress files a lawsuit with the judicial authorities regarding the illegal processing of the text and music of the work.

But let’s not forget about the moral aspect of the situation. From the statement of Maria Khursenko, mentioned above in this article, it is clear that she has experienced considerable moral pressure and has suffered damage to her own business reputation and the reputation of her father, having received indignation and negative feedback from third parties about what she allegedly could have done – to give permission for such a reworking of the text:

“I don’t want this filth to be on my page, but many of you thought that I gave permission for this complete devaluation and distortion of the song.

Of course, I realize that we are all in a bad mood right now. But this is not funny at all… She performs, but I am ashamed. I’m ashamed that our humorous culture has been lowered to such a low level…

I have received so many negative responses about this illegal use that everyone will now be interested in further developments,” Maria Khursenko wrote in her appeal on her Facebook page.

Accordingly, the fact of creating and publishing the revised lyrics without the heiress’s permission indirectly damaged Maria Khursenko’s dignity and business reputation. Thus, we can say that the heiress has the right to go to court, including for compensation for non-pecuniary damage (according to Article 23(1) of the Civil Code of Ukraine).

We will find out how this story will end and whether it will develop in the courtroom over time, and we will actively follow the developments. Unfortunately, this is not an isolated case – Ukrainian intellectual property legislation is gradually improving to comply with European standards and international practice of using the results of intellectual activity, but the level of awareness of Ukrainian citizens regarding the observance of the rights and legitimate interests of creators remains at the level of “if I am not caught, I am not guilty”.

In any case, we emphasize that if you are an author and do not want your work to be used without appropriate permission, take care of legal protection: register your copyright and work – this will be additional proof that you own the property rights to the work; transfer non-exclusive property rights to the management of the relevant collective management organization, which can not only grant appropriate permits, but also monitor and prohibit the misuse of works (if you do not have the resources to do this yourself); study the law or contact the relevant authorities. Our intelligence and professionalism are also always at your service – we will help you to understand and understand what rights you have to use the results of both your own intellectual activity and the results of such activity of third parties.

copyright / dog Patron / intellectual property / Kvartal 95 studio / parody / reworking