Sounds Familiar: The Black Keys File Lawsuit Over Sound-a-likes Used in Ads
When artists refuse to allow their songs to be used in commercials, advertising agencies can do the next best thing: hire a music production house to create a “sound-a-like” that differs enough to avoid copyright infringement suits. Since ideas are not copyrightable, ad agencies can recreate an artist’s signature sound as background music in commercials – take this K-Mart commercial and this Skrillex song, for example. Another example is dream-pop band Beach House, which turned down many lucrative offers from Volkswagen and DDB, its ad agency, which aimed to use the song “Take Care” in an ad. Last year, a new Volkswagen ad appeared using what sounded like a new song by the band.
It has become increasingly common for advertising agencies to use indie band sound-a-likes in an attempt to appeal to younger audiences. Bands like LCD Soundsystem, Grizzly Bear, and Sigur Ros have accused advertisers of ripping off their music. Unlike big-name acts, advertising agencies can prey on indie bands because most of them do not have the financial means necessary to take action. John Best, Sigur Ros’s manager, says that “if we were a richer band, we might take matters into our own hands, but you need very deep pockets to fight these cases.” The only way an artist can prevail on an infringement claim is by arguing that the sound-a-like is substantially similar to the original, taking a substantial part of the melody, lyrics, or other musical elements.
American rock band, The Black Keys, has decided to take this approach and fight back against sound-a-likes. Last year, the band settled two legal claims out of court with Home Depot and Pizza Hut for copyright infringement. The details of these settlements were unknown to the public, but the band alleged that Pizza Hut used significant portions of their hit single, “Gold On The Ceiling” and Home Depot used their song “Lonely Boy” in a power tools advertisement.
Last month, the band filed a third suit in New York Federal Court against casino operation company, Pinnacle Entertainment, and music production house, Manhattan Production Music. The defendants have allegedly used music substantially similar to The Black Keys’ song “Howlin’ for You,” in advertisements.
According to the complaint, a rep for Pinnacle Entertainment tweeted “We bought a licensed musical interpretation of the song” after a fan pointed out the similarities between the advertisement’s song and The Black Key’s song. It is also alleged that a Pinnacle Entertainment rep asserted on YouTube that the song in the commercial is “a licensed track inspired by ‘Howlin’ for You’ by The Black Keys.”
Unlike some of the indie bands mentioned above, The Black Keys have achieved a great deal of fame over the years and have the means to pursue litigation. Last year’s sound-a-likes were based on songs that appeared on the rock group’s seventh album, “El Camino,” which has sold nearly 840,000 copies. The band won big at the 2013 Grammys, taking home awards for Best Rock Song, Best Rock Album, and Best Rock Performance. If The Black Keys prevail, this would be a win for artist’s rights, and hopefully for those bands without the means to pursue infringement suits.