Sound-Alike TV Ads Cause Major Controversy
In early June, just as Beach House was enjoying a top 10 debut for its new album, "Bloom," the Baltimore indie band was also getting ready to do battle.
After learning that a new Volkswagen ad airing in the United Kingdom featured music suspiciously similar to its song "Take Care," the dream-pop duo joined a growing list of acts including the White Stripes, the Black Keys and Sigur Rós that have accused major companies and their representative advertising agencies of using "sound-alike" versions of songs without permission or compensation. The Black Keys have pending litigation against multiple entities; Beach House is considering legal action but worries about the cost.
"We don't have the money to get into a big fight with them over it," guitarist/keyboardist Alex Scally says. "They just think they can do whatever they want."
The business of sound-alikes is mostly rooted in Los Angeles, where a growing number of young musicians support themselves with freelance work writing tracks for commercials. Musicians who spoke to Billboard described an often rushed submission process with too many middlemen that can lead to overly derivative work. Others said sound-alikes are born when advertisers fall in love with an existing track that can't be obtained for a synch, and gravitate toward the jingle submissions that most closely resemble it.
Whether it pursues litigation or not, Beach House's outspokenness on the subject is resonating with some of the musicians and companies that get approached to produce sound-alikes.
"I love that Beach House are talking about this," says a source at one music supervision company who adamantly refuses to mimic existing tracks. "In this case it doesn't seem like it will come down to, 'How many notes are the same?' It's more, 'Did this evoke the spirit of this band and make their fans think they endorsed this product?' It could be a watershed moment."
A Los Angeles jingle writer who pens songs for ads when his own band isn't busy says, "People can tell when their culture is being sold back to them. It makes them pissed off and it's a negative look for a company if they run an ad that's too close to another track. And I've felt extremely guilty when I've had to go too close to a reference track, so I won't do it anymore. Someone will do that job for you, but it doesn't have to be me."
Music supervisors say that problems with sound-alikes usually arise when a client or ad agency gets "demo love" for song they're using in an early, unfinished version of a commercial. If the author of the song declines to license it, it can be difficult to persuade the client that any other song will do.
"They get a song in their head and anything else feels wrong," says another jingle composer who does double-duty in a band. "They don't really have the musical context to figure out why a certain set of chords doesn't make them feel the same way as Beach House does, or why a keyboard tone isn't doing it for them. In the racket I'm in, you end up realizing something as close as it can be to the original without being copyright infringement is what's going to sell them on it, because they don't have the musical mind to see beyond the original thing they wanted."
Dawn Sutter Madell is a music supervisor whose New York company Agoraphone has placed songs for brands including Adidas, Porsche and Ikea, among dozens of others. Sutter says she and partner Beth Urdang will "ask clients to come to us early, so we can get them out of loving a particular song as soon as possible. Or, if there's a band the client wants who won't license tracks off their record, sometimes we'll ask the band if they want to do original music for the ad themselves."
In the case of the Volkswagen ad, Beach House's manager Jason Foster says VW ad agency DDB initially reached out to the band's U.K. label, Bella Union, in March to ask about using "Take Care," from 2010's "Teen Dream," in a spot where a father watches his daughter grow up and into her first car. The band declined, but in the weeks that followed, Foster says, DDB repeatedly implored the band to reconsider, offering more money and to fly a company rep to the United States to discuss further. But Beach House has sparingly licensed its music - once for a 2010 Guinness ad that had appealingly dreamy visuals, and again for the Fox sitcom "New Girl," starring indie heroine Zooey Deschanel - and didn't feel the Volkswagen spot was appropriate for "Take Care."
A few weeks later, the band members started getting inquiries from confused fans about "the new Beach House song in the Volkswagen ad" and were outraged. The 90-second spot features a song called "Whispers and Stories," composed by London-based production team Sniffy Dog. Volkswagen has denied copying "Take Care," saying in a statement, "For a variety of reasons we were unable to reach agreement on any existing songs, so we decided to commission our own track. We greatly respect the talent of Beach House and never set out to replicate a specific song of theirs or anyone else's."
But Scally begs to differ. "It's the same time signature, it's very similar instrumentation, and they used a similar pattern within the instrumentation," he says. "They used a couple arrangement similarities, where the snare drum comes in during the chorus, and they took strong lyrical similarities. When it comes to songwriting, it's similar in five of the 10 things that make a song. And it's a 6/8 guitar pattern at a certain interval, which you don't hear in any other music in that exact way. That's something that's very idiosyncratic to 'Take Care.'"
There isn't overwhelming legal precedent in this area, and a ruling could ultimately hinge on musical fine points like the ones Scally describes. Major companies like DDB have either a staff musicologist or one on retainer to evaluate similarities between songs they've created for an ad and an existing song whose author might potentially cry "sound-alike."
In 1989, Bette Midler won a $400,000 lawsuit against Ford Motor, which had hired one of her backup singers to imitate Midler's voice for a version of "The Rose" that the company used in a TV ad. Tom Waits helped set another legal precedent in 1992 when a Los Angeles federal court ruled that Frito-Lay and its advertising agency had unlawfully duplicated the singer's distinctive voice for a Doritos radio ad. (In that case, Waits won even though it wasn't one of his own songs being performed in the commercial.) He was awarded $2.5 million in damages.
It's important to note, however, that both of those landmark cases were examples where the artists claimed that their "right of publicity" had been infringed by the use of their vocal likeness, as opposed to alleging copyright infringement for replicating a particular creative work.
Though there haven't been any major decisions since, in early 2010, the White Stripes pointed out that a new Air Force ad shown during the Super Bowl had music similar to "Fell in Love With a Girl." With the threat of legal action, the advertisement was shelved. But in years since, keen ears have picked up on sound-alikes of Fleet Foxes, Grizzly Bear, LCD Soundsystem and Jens Lekman in commercials both big and small.
Jack White's manager, Matt Pollack of Monotone, calls the problem "rampant," accusing companies that solicit sound-alikes of taking advantage of the kinds of artists who are least likely to put up a fight because they lack the financial resources to pursue legal action.
"For these companies, it's all about taking a shortcut - just changing a little bit and then putting it on top of a commercial that's the furthest thing from what that artist is about," says Pollack, whose company also reps the Shins, Vampire Weekend and Foster the People, among others. "It's criminal. It's piracy on an artistic level."
Of course, the composers who create original music for commercials don't see it that way. Songwriters who do this kind of work say they try to create something genuinely original as often as possible. Some view the gig as a way to refine their songwriting chops and support themselves while they struggle to get their own projects to turn a profit.
"It's harder to make money doing music, so it's just about finding as many ways to stay productive in music and generate income," one composer says, noting that writing for commercials "helps practice creating something catchy and memorable."
In fact, Foster the People frontman Mark Foster penned most of the songs on the band's multiplatinum debut, "Torches," while working at Mophonics, a Los Angeles company that scores TV commercials. In the past few years, Foster has bolstered his income with jingles for Muscle Milk, Verizon, Cadillac and Bank of America, among others. "Foster the People wouldn't exist without Mophonics," Foster told BusinessWeek earlier this year. "Mophonics is kind of a creative home for me."
Mophonics is just one of countless production companies selling music for commercials and beyond. Music supervisors and ad agencies tend to cast a wide net, sending a brief describing what they need to dozens of composers, many of whom work as duos or in teams to crank out as many original pieces of music as possible. The larger the catalog of tracks in various genres the composers have at their disposal, the greater the likelihood of placing one and earning a fee that could range from less than $1,000 for an online spot to high five figures for a major national TV campaign. Email briefs usually include visual and musical references - a YouTube clip of a song, a list of a few artists in the appropriate vein and some keywords that describe the themes and feelings the ad is supposed to evoke.
But much of the time, music is the last piece of the puzzle in putting together the commercial. Email briefs often require that tracks be submitted in a matter of hours, which can lead to careless rush jobs.
"When my partner and I first started, the most natural thing to do was to take the BPM, take the kind of drum beat, mirror the instrumentation and just change the chords and melodies," one songwriter says. "Now we try to make things that evoke the same spirit as the original, without being a copy."
In other instances, the ad agency and client will go back and forth with the composers to refine the track, so that it's perfectly tailored to cues in the commercial.
"Most of the time when you get a brief, it will have a reference track that they love but which is just supposed to be a jumping-off point for an original composition," one composer says. "It's more just trying to figure out what they liked about the song and trying to create that same energy.
"Everyone I know who does this is trying to create original pieces in the vein of the original rather than explicit sound-alikes," the composer adds. "It doesn't have to be mutually exclusive: shitty knock-offs versus creative music you're passionate about. There is the possibility of creating amazing pieces of music where the commercial was just the catalyst for it."••••