Sound alikes cause Antipodean angst

February 2014

Advertising, recorded music

Music sound-alikes used in advertising campaigns are leading to a number of legal wrangles in New Zealand and Australia according to Kelly & Co partner Peter Campbell in an article in Adelaide Now.  There is the current dispute between Audi and New Zealand band OMC and their label Universal Music: UMG have accused the car company of copying the 1996 hit song Land of Plenty in the Land of Quattro advertisement. Mr Campbell said if the case proceeded, it would be the first in New Zealand to address passing off and misleading and deceptive conduct for a musical sound-alike, on top of the issue of copyright infringement. Mr Campbell believed this could lead to different tests being applied to copyright infringement and misleading conduct claims in Australia. Last year, dairy company Dannon used a soundtrack in its advertisement aired during the US Superbowl, which resembled the John Butler Trio’s 2003 hit Zebra. Dannon and the John Butler Trio negotiated an arrangement, so that the advertisement no longer contains the similar music. In other jurisdictions some musicians have had similar success.

In the US the singer Bette Midler sued an advertising agency over a sound-alike version of her recording of “Do You Wanna Dance?” for a Ford Motor Co. The 9th Circuit Court of Appeals agreed that the ‘mere imitation’ of a copyrighted work would not constitute copyright infringement, and Young & Rubicam had the permission to use the song – but found for Middler for infringement of her image rights saying ‘a voice is as distinctive and personal as a face. The Supreme Court upheld a $400,000 jury award. “Old Cape Cod” was the subject of a 1990 lawsuit subsequent to a sound-alike version of the Patti Page hit that was featured in a 1989 commercial for American Savings Bank. Page sued the advertising agency responsible for the commercial, alleging that the commercial implied that Page herself endorsed the bank and gravel-voiced singer/songwriter Tom Waits has brought a number of lawsuit against sound alikes, settling his case against German carmaker Opel and its advertising agency McCann Erickson  for using a sound-alike in a series of TV commercials in 2005, having earlier won a legal dispute against Tandem Campmany Guasch, a Spanish production company that had misappropriated his singing style for a sound-alike TV spot in 2005. He separately won $2.5 million in a case against Frito-Lay in the United States, which was affirmed on appeal in 1992, for using his vocal style in a commercial marketing the Salsa Rio Doritos chips. The company had approached Waits to use one of his songs in an advertisement. Waits declined the offer, and Frito Lay hired a Waits soundalike to sing a jingle similar to Small Change’s “Step Right Up“, which is, ironically, a song Waits has called “an indictment of advertising.  Wait had famously condemned musicians who used songs in commercials, saying: “If Michael Jackson wants to work for Pepsi, why doesn’t he just get himself a suit and an office in their headquarters and be done with it.”


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