In the history of advertising, it’s not unusual for brand companies to commission “sound-alikes” of popular songs for commercials. About a decade ago, NPR’s On the Media examined the phenomenon of ad agencies falling in love with a particular piece of music and presented the choice facing those who create advertisements: 1) obtain the rights to use the song from the artist, 2) compose something else, or 3) go to a music production house and get a piece of music that’s similar but differs enough in such areas as key or melody to avoid lawsuits.
Many advertisers choose option 3 — and some musicians are no longer standing for it. And Grammy-winning garage rock band The Black Keys might be prepared to lead the vanguard on this front.
After settling two lawsuits with Pizza Hut and Home Depot in December over alleged use of its songs in commercials, the band filed a third lawsuit last week. Terms of the settlements with the first two companies weren’t revealed, but evidently the resolution was financially satisfactory to lead The Black Keys to bet on more litigation — this time, against Pinnacle Entertainment, which runs casinos throughout the United States, and Manhattan Production Music, a company that creates music for commercial advertising.
According to a lawsuit filed in New York federal court, the defendants have used its hit song, “Howlin’ for You,” in advertisements.
The first commercial that used music allegedly “substantially similar” to the Black Keys song ran in September for Pinnacle’s L’Auberge Casino Resort Lake Charles. The following month, a second commercial is said to have run using “infringing music” for a second casino. (See videos below.)
Asked for reaction, Pinnacle said it wouldn’t comment on pending litigation.
When Pizza Hut was sued in September, the food chain asserted various defenses before the case was settled. Among them was that if there was any similarity between the band’s music and the tune in its commercial, such similarity consisted solely of material that wasn’t original to The Black Keys and therefore not protectable.
Lest the latest case be merely about whether The Black Keys can protect their keys, the lawsuit against Pinnacle has another wrinkle.
The complaint says that on Twitter, a fan of the band pointed out the casino operator’s music, and in response, a rep for the casino tweeted, “We bought a licensed musical interpretation of the song.”
In addition, it’s alleged that on the YouTube page for the casino’s advertisement, a rep for the casino asserted that the commercial is “a licensed track inspired by ‘Howlin’ for You’ by The Black Keys.”
This possible social media bravado has added two additional charges that were not present in the band’s lawsuits last year: In addition to bringing a copyright infringement cause of action, 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.
Some things change. Other things, like Twitter, are new. Here’s one of the commercials in dispute along with The Black Keys’ original: