http://berkleevalencia.org/academic-programs/master-degrees/master-of-arts-in-global-entertainment-music-business
MB-551 Business and Intellectual Property Law
Berklee College of Music Valencia
Allison Zatarain
4 December 2012
Sound-Alike Compositions: Hitting a Gray Note
Introduction
In the new digital era, musical artists have more control than ever before. For instance, rather than relying on advances from a record label to record an album in a pricey studio, an artist can record his or her own album at home with a laptop. Rather than spending a large advance on traditional media campaigns, artists can promote themselves online through social media interactions and direct-to-fan platforms. There is one particular choice that has always been in the hands of the artist - the decision whether or not to "sell out" in a commercial or campaign. Once taboo, artists are accepting this offer more and more due to the dwindling revenue stream of record sales. The previous stigma is evaporating. “The fees paid by advertising agencies and their clients for commercials can be substantial (e.g., from $75,000 to over $1,000,000 per year for successful songs).”[1] But some artists still want to say "No." Why? And at what cost?
The selection of the right track by an advertising agency is essential for the success of a campaign. In a cluttered, materialistic society, a product needs all the help it can get to stand apart in the crowd. Placing a snippet of a popular recording is a commonly used tactic, in addition to recording new covers and original jingles. When deciding whether to contribute an existing recording to a campaign, the artistic team (usually comprised of the Publisher, artist/manager, and record label controlling the master recordings) negotiates every detail, ranging from specific media used, territory covered, whether the track is needed for a continuous campaign, and the proper fees due.[2] The high fees required to secure the rights to feature the musical composition and the specific recording can get expensive fast.
Despite the financial rewards and the chance to gain exposure for an artist to new audiences (both fan and commercial), many artists resist the offer to provide the soundtrack to a marketing effort. In their minds, there is the possibility that such a placement could “damage the future earning potential of a copyright, as it may hinder additional new recordings or other uses” or hurt the “integrity of the song.”[3] When an artist says “No,” the advertising agency and client must resort to other song options. But what if they’re in love with one particular song? In their minds, perhaps they have bonded with the placeholder scoring viewed internally atop the unreleased advertisement. Or maybe a song inspired the ad concept all together. When no other song will fit, marketers commission a sound-alike track.
A “sound-alike” is a song recording meant to mimic the sound of a recording, the style of an artist or band, or an overall musical trend. As a creative, sonic entity, sound-alike’s live in a gray area of the law and can sometimes result in unfair competition and copyright infringement. But infringement is difficult to prove by the artist behind the original recording. "Generally, a musician cannot copyright an instrumental style, mood or an overall sound, so the artist must prove the composer of the derivative work plagiarized a substantive part of the melody, lyrics or other musical elements. The cases often hinge on painstaking, note-by-note analysis of the music."[4]
If an artist is angered by a sound-alike in a commercial, for example, a lawsuit is filed that will rely heavily on the opinion of one to three music experts. According to the web site of Musiodata, a provider of musicology services, when confuting a Musicological Analysis they consider "all pertinent music and vocal elements including melody, harmony, rhythm, instrumentation, lyrics, musical style, samples, vocal sound and style, etc. in order to determine if there are problematic similarities between the works." They note that “works that sound different may have borrowed copyrighted material in ways that are not at first obvious.”[5] A judge will rely heavily on this analysis as he or she does not possess this level of musical listening skills. Saying “this song sounds a lot like that song” is not a strong enough argument.
Beach House + Volkswagen
Beach House is an independent rock band from Baltimore, MD consisting of two core members Alex Scally and Victoria Legrand. They are known for their “dream pop” sound, which originated in the UK in the 1980’s. The band has released four LP albums to-date, breaking through to more mainstream audiences with the success of their third album Team Dream in 2010 via indie juggernaut Sub Pop Records. They have 317,000 fans on Facebook, and the two videos for hit single “Take Care” have a combined total of 579,000 views on YouTube. The likes and view count is small potatoes compared to an artist like Justin Bieber, but the stats are high within the independent music scene.
In the summer of 2012, the scene was abuzz concerning a new Volkswagen ad that appeared to feature a song from Beach House. It all began when Beach House was approached by a London-based advertising agency DDB with an offer it turns out they could refuse. And they refused it five times according to band manager Jason Foster. The agency asked permission to use the track “Take Care” in a new 60-second Volkswagen commercial. After refusing the offer (five times) the automotive spot aired soon after with a replacement track called “Whispers and Stories” produced by the sound-alike experts at Sniffy Dog studio. Immediately Beach House fans took to the Internet to rant about how Volkswagen “ripped off” the band, pointing out the similarities in the instrumentation, vocal style, and lyrics. For example, Beach House croons “I’d take care of you/If you ask me to” while the sound-alike says “I’ll watch over you/I’ll watch over you.”
Team Beach House was not pleased. They distanced themselves from the ad via their Facebook page with a statement explaining, “The ad agency actively tried to license "take care" from us for weeks, to which we politely declined. People's comments/ anger should not be directed towards VW or us. It was the ad agency that made these moves. I hope this also clarifies to fans and non- fans just how "take care" and the vw ad song are related.” This raises the issue of asking for permission to use a particular song. Had DDB not approached Beach House (five times), would the band have been as upset by the sound-alike? Could the band in this case have had more grounds of defense based in good faith? Probably yes. In this instance, they knew without a doubt that DDB/Volkswagen wanted to use “Take Care” for the commercial, so their ears were already open.
According to a New York Times article, Beach House's manager stated, “When someone takes Beach House’s vibe and puts it into a commercial, it tarnishes what they’ve done on their own.” The article went on to relay, "the band is considering legal action, but is concerned about the steep costs involved."[6] Moving forward the band has the option to just let it go, file suit, and/or settle out of court.
Sound-Alike’s + The Law
This creative battle is nothing new, and the laws in place hover in the gray area. In a legal suit involving copyright infringement with the use of a sound-alike, the plaintiff must prove ownership of the copyright, show that the defendant copied the copyright-protected material, prove improper appropriation, and prove substantial similarity between works – but only of protectable elements of that work. As noted above, a musician cannot copyright an instrumental style, mood, or sound. Other than painstaking analysis of the melody and lyrics, one legal crutch for artists is the right to publicity. “In the United States, many states have laws protecting a musician’s ‘right to publicity.’ If a sound-alike track confuses the public and makes it appear that a musician is endorsing a product, the musician can sometimes prevail in court. Britain has a similar tort statute, known as the ‘passing off’ provision.”[7] Currently only 19 states in America protect publicity rights.
Overall, very few cases of copyright infringement via sound-alike’s have been brought before a court. The first breakthrough on the side of artists came in 1988 with a case involving Bette Midler and Ford Motor Co. when “the 9th U.S. Circuit Court of Appeals created law by declaring it illegal to deliberately imitate the voice of professional singer in an advertisement, when that voice is distinctive and widely known.”[8]
One very distinctive voice belongs to Tom Waits. He hoped the law would swing his way in 1990 when he “sued Frito-Lay and its advertising agency for voice misappropriation and false endorsement”[9] for a sound-alike track in a Dorito’s commercial.[10] Tom Waits won the $2.6 million case and Frito-Lay immediately appealed in 1991 but their request was denied. Interestingly, Waits was famously against appearing in advertisements at the time, frequently “expressing his philosophy that musical artists should not do commercials because it detracts from their artistic integrity.”[11] Further commenting, Waits has said, “The advertisers are banking on your credibility, but the problem is it's no longer yours.”[12] His public stance only added fuel to the fire when he filed suit, since in addition to impersonating his sound the ad made him appear hypocritical. The “voice” of the sound-alike in the Frito-Lay advertisement belonged to Waits fan Stephen Carter. And as one should never underestimate the true loyalties of a music fan, Carter came to the rescue of Waits and appeared as his witness in court, no doubt helping him win the case.
Not every artist takes legal action when they feel their sound has been copied. The band Sigur Rós has taken to the digital stage to sound off against sound-alike’s, claiming to be frequently replicated in advertisements. The band habitually declines requests for synchs, so sound-alike’s are a particular offense to them. In a post entitled “homage or fromage?” they relay the uphill battle bands have in the face of similar tracks. They explain “you can get all the musicologists' reports you like and all they will tell you is that the chord sequence is ‘commonly used’ or the structure is a ‘style-a-like’ … in other words change a note here, swap things around a bit there and, hey presto, it's an original composition. Inspiration moves in mysterious ways.” They go on to post videos that are “expensively produced, gorgeously executed examples of brands who you might feel are inserting a little too much fromage in their homage.”[13] Despite their complaints, the band shows no sign of pressing charges. “ ‘If we were a richer band, we might take matters into our own hands,’ said John Best, Sigur Rós’s manager. ‘But you need very deep pockets to fight these cases.’ ”[14]
Conclusion
When analyzing a sound-alike, the listener can ask: “Would the sound-alike exist without the allegedly copied track?” But even if the answer is “no it would not,” can’t we say that about all music? Famed web video series creator Kirby Ferguson claims that “everything is a remix,” citing artists such as Bob Dylan and Led Zeppelin as copiers of pre-existing musical content. He says “our creativity comes from without, not from within. We are not self-made, we are dependent on one another. Admitting this to ourselves isn’t an embrace of mediocrity or derivativeness, it’s a liberation from our misconceptions.”[15] Looking once again at Beach House, their sound can easily be compared to the other members of the “dream pop” and “new wave” subgenres including The Passions (1978-1983), members of the “shoegaze” genre such as Lush (1987-1988), and even modern-day counterparts Blonde Redhead. It would be virtually impossible to assign sonic ownership to any specific entity.
In the face of looming, inevitable sound-alike’s and corresponding litigation, saying “No” to an advertising synch is perhaps not an exercise of artistic control, but of artistic values. The resistance of a quick paycheck is a testament to an artist’s core sensibilities: to live and die for art and art alone, and to never compromise. But what is the lesser of the two evils? “Selling out” your art for money, or getting copied? The gray area runs deep, as does the creative pool of musical talent that inspires the copiers, that inspires the fans, and that will inspire the next generation of kids with guitars about to plug in.
2
[1] Jeffrey Brabec and Todd Brabec, Music Money And Success: The Insider’s Guide to Making Money in the Music Business, (New York: Schirmer Trade Books, 2001 (7th ed), 37.
[2] Jeffrey Brabec and Todd Brabec, Music Money And Success, 296.
[3] Jeffrey Brabec and Todd Brabec, Music Money And Success, 297.
[4] James C. McKinley Jr., "To Singers, Ad Sounds Too Familiar," The New York Times, 7 June 2012, http://www.nytimes.com/2012/06/09/arts/music/a-british-volkswagen-ad-sounds-like-beach-house.html
[5] Musiodata web site, accessed 3 December 2012, http://www.musiodata.com/services.html
[6] John Jurgensen, "Did an Indie Band Inspire a Volkswagen Ad?," The Wall Street Journal, 6 June 2012, http://blogs.wsj.com/speakeasy/2012/06/06/did-an-indie-band-inspire-a-volkswagen-ad/.
[7] McKinley, "To Singers, Ad Sounds Familiar."
[8] "Tom Waits Sues Frito-Lay, Says His Voice Appropriated," Los Angeles Times, 13 April 1990, http://articles.latimes.com/1990-04-13/business/fi-1428_1_singer-tom-waits