Songs For Screens is a Variety column written by Andrew Hampp, a VP at New York-based music sponsorship and experiential agency MAC Presents and former branding correspondent for Billboard. Each week, the column will highlight noteworthy use of music in advertising and marketing campaigns, as well as new and catalog songs that we deem ripe for synch use.
Last week’s decision by the 9th Circuit Court of Appeals to uphold the 2015 $5.3 million verdict that Robin Thicke and Pharrell Williams’ “Blurred Lines” infringed against the copyright of Marvin Gaye’s “Got To Give It Up” failed to reverse a precedent that was set for songwriters just over three years ago: If a song’s “groove” or “feeling,” as the appeal brief maintained, can in fact be protected, what happens to future compositions that are inspired by previous artists or genres?
Sam Smith, Ed Sheeran and Mark Ronson & Bruno Mars are just three high-profile examples of artists who’ve settled similar cases out of court post-“Blurred Lines,” in some cases granting co-writing credit or sharing in songwriting loyalties — and just this weekend, Lana Del Rey announced that a lawsuit over similarities between her song “Get Free” and Radiohead’s “Creep” was settled (although the group’s publisher denied there was a lawsuit).
But the verdict has also helped quell a far more pernicious behavior that has been taking place in the advertising community for years: The intentional use of “soundalike” songs in commercials when the source material isn’t available or within budget.
Last November, copyright holders of Eminem’s “Lose Yourself” were awarded $600,000 (roughly $415,000 in U.S. currency) from a New Zealand court ruling that deemed a song used in a 2014 campaign ad for the country’s National Party was “substantially similar” to the rapper’s 2002 hit (the fact that the composition was titled “Eminem Esque” didn’t help the opposing production house’s case). The case was the latest in a long line of similar lawsuits and copyright disputes with indie-rock bands like Black Keys, Tame Impala, Beach House (not to mention Tom Waits) against ad agencies and their clients for using music “inspired” by their signature songs.
Josh Rabinowitz, Exec VP-Director of Music at WPP’s Grey Group Townhouse, has been a vocal opponent of commercial sound-alikes throughout his two-decade career as an award-winning commercial music supervisor. In a candid Q&A, Rabinowitz shares his tips for how to avoid “demo love,” as it’s known in ad circles, and surprising revelations from the “Blurred Lines” trial he uncovered at a recent South By Southwest panel.
It’s been three years since the “Blurred Lines” verdict, yet commercial sound-alikes continue to be a pervasive issue. What lessons do you think the verdict, and last week’s failed appeal, have taught the creative advertising community?
Josh Rabinowitz: For sure, it’s been a long pursuit in getting people not to throw references onto cuts that they can’t have or potentially would not be able to get. Just play it safe – it’s something that I’ve taught all the people that have worked with me for years and years. It’s amazing to me that it still exists, because I think people on many levels are not necessarily up for the challenge of coming up with something original. They kind of like to go with what they know or something that’s powerful or resonant in culture. The requests are not as frequent, the projects are not as frequent when there’s something put out there that could potentially be difficult to license. We generally as a policy refuse to allow any projects try to get closer to an existing track. It’s too radioactive. Trying to convince people not to do it is the biggest challenge I’ve had professionally in all the years I’ve been in the business.
Why do you think it still happens in the industry?
Because [music supervisors] are not involved in every moment of the process. While people are perpetually editing a piece of film or content with an editor, it’s hard for us to get in there early enough to preclude it. But I think we’ve been able to come up with solutions that have precluded people from doing that. People have also seen the sh–storm that can happen when they get really close or try to sound like something. It can really put a client in a really bad place. The relationship between an agency or a consulting firm or a marketing firm or PR firm ends up in pretty dire straits.
What is the potential liability?
Significant — it could be millions of dollars. The money’s not flowing the same way. There are so many different conduits. But it can be really heavy.
What’s your personal take on the “Blurred Lines” verdict, and why do you think it was upheld last week?
I don’t think it was a copyright infringement, but there was total intent to sound like or cop elements of the [Marvin Gaye] track because it’s such a great track. It made so much sense for an artist like Robin Thicke, who has done homages and covers of Marvin Gaye songs. His voice is kind of similar, he’s a very talented guy. I think intent, generally speaking, is not illegal.
But obviously people interpret things different ways. The original case wasn’t a jury of experts, it was a jury of [ordinary, non-music-industry] people. In the appeal, the dissenting judge was completely right — I don’t think the two judges who said they would uphold it knew a lot about music. That’s an idea of what it’s all about — its not about scientists or forensic musicologists. It’s about peers, people who are not necessarily musical experts.
I hosted a panel at South By Southwest last year with the people that won the case from the Gaye estate [King & Ballow’s Richard Busch and Levinsohn Associates PC’s Mark Levinsohn]. What was really interesting to me about that case is they were supposed to only look at the sheet music. How can you tell if something only sounds like something else? Sheet music is just notations of a melody, rhythm and harmony. But the lawyers on the panel said they had a couple things they could show, just enough information, that there was at least some doubt.
Also, Robin Thicke and Pharrell Williams were kind of irreverent. They showed up late into the courtroom almost every day. In L.A. County Court, people have to be there at 8 [a.m.], and those guys would show up at 9:30 or 10, while the case was going on. They were pretty cocky and not so cool, and I think that [helped] them lose the case — they seemed like jerks. I had a musicologist on the panel as well [Judith Finell) who said, “You’re not dealing with a jury of experts, you’re dealing with a jury of peers.” They found enough stuff in there to create the sense that there’s something there.
So you think it was personal issues and professionalism that ultimately led to that verdict?
In the [Verve’s] “Bittersweet Symphony” case [against copyright holder ABKCO], I believe it was a similar thing: You listen to the Rolling Stones’ orchestral version of “The Last Time” [which was used in the Verve’s song] and it’s not even a sample. It’s a different thing, they asked for permission but their lawyers f—ed it up. They got the permission, they just didn’t dot the Is and cross the Ts tight enough, as I understand it.
That was a huge track in advertising – people were copying it left and right. I remember when it came out it was used in the film “Cruel Intentions” and then a Nike ad, and people were like, “We need to do something like this.” And I said, “You can’t. You can do an orchestral string riff on a melody with a rock beat, but it can’t be the same kind of progression or melody.” And people didn’t understand that.
What advice would you have for creatives trying to steer their teams away from the option of pursuing a soundalike track for their commercial?
I bring up the lawsuits! I say, “This is pretty risky and we wouldn’t recommend it.” What we would recommend is to create a completely original point of view. I try to present musical ideas to clients that they would want to listen to. Same with internal teams – people become more open to trying to do something original and breakthrough because it’s the way you win awards. It’s the way you extend your reputation in the business.
What we try to do as a music team here is really show them, through their ears, examples of stuff that is really great. I have a presentation that I’ve done over the years where I talk about amazing original music that has broken through and played them various things that have won awards and gotten recognition, and people usually listen. It’s about developing a trust and explaining the issues.