Music is one of the most important ways that brands and their ad agencies have found to connect with the public. Music can telegraph the audience that you’re going for, and for that reason it makes a big difference if you’re using Frank Sinatra or the Black Eyed Peas. There are two ways to acquire music. Either you license existing pieces or you create you’re own. What does an agency do if the must have music that they need is unavailable – it’s either too pricey or the artists refuse permission? You create a “soundalike.” A sound-a-like is just what it sounds like, literally. It’s music that sounds like the music that you want.
Shouldn’t that be illegal? It sounds like the original. It feels like the original. It’s actually not as simple as that. A musician cannot copyright a style, a vibe or a sound. The original rights holder must prove that a substantive part of the work has been plagiarized, that a significant part of the work, melody, lyrics or other parts have been lifted. It is certainly legal for a musical composition to inspire a commercial or another musical composition. Where music is involved the process of proving a copyright infringement can be complicated, sometimes requiring a note-by-note analysis. It can also be time consuming and expensive, and many bands don’t have the time or the bankroll to pursue cases.
The Black Keys have proven to be an exception. Last month they settled cases against Pizza Hut and Home Depot. The terms weren’t disclosed, but here’s the original Pizza Hut commercial if you want to take a look and a listen:
Last summer the band Beach House thought they had experienced a collective case of deja vu when its members heard (and saw) a VW ad. Beach House had actually been approached by VW and its agency DDB. The group had licensed music in this past, they just didn’t think that this commercial was the right one for their music. For its part, VW said it had decided to use something from the “dream pop”genre at the outset. Here’s what they had to say:
“We greatly respect the talent of Beach House and never set out to replicate a specific song of theirs or anyone else’s. Most important to us was to find a track which matched the narrative of the advert, telling the story of the daughter’s growing up and the evolving relationship with her father, and we believe we have achieved this in the final edits.”
Here’s the ad if you’d like to see it for yourself:
The Black Keys must have been encouraged enough in their first two suits to file a third last week. This one is based on two ads that appeared in the fall for casinos owned by Pinnacle Entertainment. The first one, for the L’Auberge Casino Resort in Lake Charles, has been claimed to be “substantially similar” to the Black Keys’ “Howlin’ For You.”
There’s an interesting social media twist here. After fans pointed out the similarities to the casino on Twitter and YouTube, casino reps responded that, “We bought a licensed musical interpretation of the song,” and, allegedly, that the commercial is “a licensed track inspired by ‘Howlin’ for You’ by The Black Keys.” As a result of those statements the band also is claiming the defendants have violated trademark law by suggesting a false designation of origin as well as making unfair competition for them.
While sound-a-likes are now coming under fire, this isn’t the first time it has happened. In some states laws have been passed protecting an artist’s “right to publicity.” This means that if a piece confuses the public into thinking that the artist is endorsing a product or service then the artist may prevail. This tactic has been used successfully both by Bette Midler and Tom Waits.