Sounds Like Teen Spirit: Musicians And Advertisers At Odds Over Use Of Sound-Alikes In Advertising

An increasingly important source of revenue for songwriters and performing artists has been licensing their compositions or sound recordings for use by commercial advertisers. Even when such advertising licenses are not particularly lucrative for the band, the use of its song in a national advertising campaign can be a valuable source of exposure. At the same time, advertisers have recognized the potential value of associating their brands with a particular band or musical work, or using a work to conjure a particular mood or theme and make the advertising message more powerful and memorable. According to one recent article, "[i]n recent years in a relentless quest for young customers, ad agencies have begun trolling among buzzed-about indie rock groups for musical ideas to use in ads for, say, cars and restaurants." James M. McKinley, Jr., "To Singers, Ad Sounds Too Familiar," New York Times (June 7, 2012).

On some occasions, however, advertising agencies may resort to creating sound-alike tracks when a band declines to allow its music to be licensed for advertising or asks for more money than the advertiser is willing to pay. Several controversies have arisen recently over the use of such "sound-alike" music in advertisements. As recounted by Alex Scally of the indie rock duo Beach House (regarding the incident described below), "it feels like something close to what we have made. A feeling and a sentiment and an energy has been copied and is being used to sell something we didn't want to sell." Id. In that instance, Beach House raised objections to a Volkswagen advertisement that used music alleged to be highly evocative of its "dream pop" musical style and, in particular, its song "Take Care." An advertising agency had previously sought a license to use that song for the Volkswagen commercial, but the band is reported to have repeatedly declined the offer. Volkswagen has denied that the song used was purposely made to imitate the Beach House song. In another incident, the rock duo The Black Keys reportedly sued Pizza Hut and Home Depot for using what they have alleged to be their single "Gold on the Ceiling" in commercials.

Numerous other such instances have arisen over the years, including the alleged use by a Spanish sporting goods company of a song that sounded like Fleet Foxes' "White Winter Hymnal," and Audi's alleged use of a song that sounded like one from Sigur Ros. Other artists or their music publishers, such as Santana and Eminem, have likewise protested the use of sound-alikes in...