Tuesday 26 June 2012

On bold infringement or unauthorised use of hit singles for commercials

Über-cool US rock duo The Black Keys are composed of Dan Auerbach and Patrick Carney and, during their careers, have already attracted some attention, among the other things, in the general discussion concerning fully-licensed online music services. A while ago, they indeed joined those (such as Coldplay) who have decided not to make their works available on music-streaming services, such as Spotify, MOG, Rdio or Rhapsody, on fear that, as argued by Billboard, these services detract from already declining music sales. 
The band has recently released their seventh album, entitled El Camino. According to Wikipedia, this has been very successful so far and received positive reviews, being also ranked by many music publications as one of the best albums of the year. In the US, it debuted at number two on the Billboard 200 and sold 206,000 copies in its first week, the highest charting position and single-week sales. 
Apparently the success of the album has been so great that its first two singles are already at the centre of some copyright litigation.
A few days ago the duo, together with music producer Danger Mouse (copyright enthusiasts will promptly recall that there was a time when Danger Mouse was on the other side of the courtroom, being the defendant in the well-known Grey Album case), brought two distinct proceedings against The Home Depot and Pizza Hut for copyright infringement (you can read the lawsuit which has been filed against The Home Depot here. However, this blogger has not been able to find a copy of the suit against Pizza Hut: can any reader help?). 
As mentioned, these concern unauthorised use of the two first single of The Black Keys' El Camino, these being Lonely Boy (which was released last October) and Gold on the Ceiling (which was released in February last).
The Black Keys appalled
by news of shameless infringers
As regards the first lawsuit, which was filed before the US District Court for the Central District of California, plaintiffs claim that commercial advertisement for "Ryobi" brand power tools prominently features significant portions of Lonely Boy, without any authorisation from The Black Keys, thus infringing 17 USC §§ 106 and 501.
As to the Pizza Hut commercial for Cheesy Bites Pizza, this is said to include a (highly) significant part of Gold on the Ceiling.
We'll see what happens next. It may be likely that all this ends up with a settlement, as was eventually the fate of the commercial for Dannon's Oikos Greek Yoghurt, which was first aired during last Super Bowl (see here and here).
In any case, it is not that difficult to realise that unauthorised use of third parties' music for commercials is not an activity which may go unnoticed and not upset anyone ... Is this the place where copyright infringement meets boldness?

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