Advertisers Call It a ‘Soundalike.’ The Black Keys Call It ‘Infringement.’

Write and record a song, and copyright law protects the resulting assets. But what about the important signature style that often defines a musical group or a specific song?  Things like instrumentation and guitar effects, vocal styles, arrangements, and phrasing are frequently imitated for a profit, and incredibly difficult to protect through copyright.

lego_note

Which brings us to a potentially huge shift in how copyright is protected around so-called ‘soundalikes‘.  Currently, music companies that service advertisers will create a ‘soundalike’ version to help bypass complicated or expensive licensing processes.  This can go beyond a specific genre to include a specific artist or song, which means substantial elements of the original are being reassembled to create something slightly different and legally safe.

black_keys_v_pinnacle

Or at least that was the thought.  Enter the Black Keys, who are now on a legal rampage to challenge the notion that a mere style can’t be protected.  It started with aggressive lawsuits against Pizza Hut and Home Depot last year, and now involves Pinnacle Entertainment.

The Black Keys actually forced legal settlements with Pizza Hut and Home Depot for using legitimately licensed, ‘soundalike’ recordings, which means a precedent wasn’t set.  Pizza Hut argued that it wasn’t lifting any specific copyrighted works, but probably decided to avoid drawn out litigation to protect its finances, its image, and a possible loss.  Here’s the Pizza Hut spot if you haven’t seen it.

The current target, L’Auberge Casino Resort Lake Charles in Louisiana (owned by Pinnacle), is being sued for soundalike versions of the Keys’ “Howlin’ For You.”  But this is a little different: Manhattan Production Music specifically produced the arrangements for Pinnacle to imitate “Howlin,'” a move that introduces a more aggressive form of imitation.

Which brings us to this Twitter exchange, which specifically mentions that process and that song.  The seemingly protected ‘interpretation’ is exactly what the Black Keys’ lawyers say is infringing, and causing damage to its client.

blackkeys_soundalike

L’Auberge has since pulled the YouTube clip of the spot, though a duplicate could appear if the story grows.

Written while listening to Beach House.

26 Responses

  1. @mattadownes
    @mattadownes

    ironic that you’re listening to Beach House during this article Paul.

    Is there a federal copyright law that shows precedent to “soundalikes”?

    It seems to me that Pizza Hut kinda threw in the towel on a well-positioned gamble.

    Reply
  2. Visitor
    Visitor

    Songwriters who waste their often considerable talents on soundalikes are IMHO leeches and parasites.
    But please, let’s stick to the ‘substantial’ or ‘striking’ similarity in melody — which usually means at least 8-10 consecutive notes that you can whistle or play on a monophonic instrument — or lyrics that is required by law for a work to be plagiarized.
    Otherwise, Chuck Berry can sue the entire world and end up owning not only Beach Boys’ Surfin’ USA but the entire discography of rock.
    The pizza dude obviously didn’t know the first thing about music biz, and his (fatal) mistake was to use the term ‘interpretation’ instead of ‘parody’.
    But I hope semantics won’t determine the outcome of this.

    Reply
    • Up Chuck Berry
      Up Chuck Berry

      There is no 8-10 note rule. John bonham sued Biz markie for one kick drum beat. Ok it was a master sample, but nonetheless there is no rule about length or amount of notes, it just has to be substantially similar and accessed. As for Chuck Berry, he never had a chance of defeating the Beach boys for using a then (and now) common guitar riff. ZZ top successfully defended the same nonsense from John Lee Hooker who said he invented the boogie riff. Patent nonsense. Berry intimidated Murry who gave up pub on “fun, fun, fun”,
      and later regretted it when he learned more about copyright law. Its hard to win a (c) infringement claim, but there’s no minimum note requirement. In the case of black keys, they’ll get a nice settlement, and its ad agency chump change, cost of doing biz.

      Reply
      • Visitor
        Visitor

        “There is no 8-10 note rule.”
        And I never said there was — I explicitly said that the required substantial or striking similarity usually means at least 8-10 consecutive notes.
        And it does; especially in recent history. I would have sent you a bunch of links to ucla’s great infringement site, but it has actually disappeared for some reason. But the tragic comedy of the kookaburra is a good example…
        Also, don’t confuse recording rights with composer rights as you did in Bonham’s case.
        As for the outcome — I’m not so sure Black Keys win…

        Reply
  3. Visitor
    Visitor

    Right,

    So every derivative band that we see come out on a monthly basis that are clinging to a current “sound” should get the same treatment right??

    Reply
  4. Feyd Rautha
    Feyd Rautha

    Style has been protected by the courts in these ‘soundalike’ cases. Tom Waits and Bette Midler won these types of suits with fairly significant damages awarded.

    Reply
    • Dr. Ew
      Dr. Ew

      Those lawsuits weren’t actually considering music. They were protecting the singers’ unique vocal styles. Just like John Fogerty was sued for sounding too much like John Fogerty in his solo works after Creedence.

      Reply
  5. Jason Menkes
    Jason Menkes

    The big issue in these cases is intent. If the client was looking for music for their commercial and in the exploration process (either with a composer or supervisor) ended up with a piece that happened to sound similar to an existing work, then they’ll have a strong defense (especially with the Black Keys, whose sound is intentionally referential).
    If however, the agency edited their picture to the Black Keys, presented a cut to their client for approval with that music, and after realizing they couldn’t afford the license tried to find a cheaper replacement, they are clearly infringing on the copyrights.
    If they had legally licensed an interpretation of the original song, the Dan Auerbach and Patrick Carney would have been compensated as composers, and could have given permission as artists to do a sound alike. This is done legally in the industry all the time when a master recording is recreated to sound like the original but scored to better fit the picture.

    Reply
  6. Chris Daniels
    Chris Daniels

    I sing and play banjo, mandolin, and guitar for all kinds of advertisements and the ‘sound alike’ directive of the agencies to the studios has been going on for as long as I’ve been doing it. Whether they want me to sound more like Earl Skruggs or Bela Fleck on a banjo part or more like Bob Seeger and less like Keith Urban – it’s part of the business. The ad agency usually has an idea of the ‘sound’ they want. The commercial writer — sometimes in studio, sometimes me, sometimes from the ad agency then has the pecular task of making it sound enough like the song or style that the ad agency wants and different enough to be original – and not a sound alike. It IS a tightrope. It employees a whole lot of musicians around the country and if you land a major commercial it can be a larger percentage of your annual income for these musicians. And there is humor in it too. I once GOT the “sing” for a major mexican food store BECAUSE I sounded more ‘white’ than then my friend who did the original “sing” for the product. When they did a test market of the ad, the result was that this great ‘sing’ my friend did with all the great latin phrasings sounded too ‘ethnic’ — so they went with the dumb white guy “sing.’ As musicians we learn to laugh at it and enjoy it … and it pays a whole lot of our bills … so much as I love the Black Keys … their agressive attitude could put a lot of musicians out of work — if the industry get’s scared and goes to all ‘library’ tracks. Isn’t imitation the highest from of flattery?

    Reply
  7. Sick of Black Keys' Rants
    Sick of Black Keys' Rants

    I think it’s uphauling to think Black Keys created this dirty blues “sound” and called it their own. They didn’t; they were just the main group to make it popular again. What about Ash Grunwald, Beck, the aforementioned group The Heavy, Racontuers/White Stripes, Black Rebel Motorcycle Club, Wolfmother, etc.
    Is it just me or does it seem like every time I here about the Black Keys lately, they’re pissed off or doesn’t like someone’s music?
    I’m all about copyright but a “soundalike”…come on! If this is the case, the EDM scene would never have any music because it would be full of lawsuits after lawsuits… Guess U2 should go after Coldplay, too…

    Reply
  8. Dr. Ew
    Dr. Ew

    Can we not forget that it’s blues? Blues music has been using the same riffs and melodies ever since the beginning.

    Reply
  9. MusicLawyer
    MusicLawyer

    I would like to know how the writer of this article “knows” that “…Manhattan Production Music specifically produced the arrangements for Pinnacle to imitate “Howlin,'” a move that introduces a more aggressive form of imitation.”?? This seems to me to be a pretty gross assumption with no basis in fact. Digital Music News, if you’re going to write about legal issues, then approach them professionally and without bias.
    Nevertheless [how’s that for lawyer-speak?], The Black Keys didn’t invent the blues, even tho they think they did, but our legal system is set up to reward the well-financed litigious bully. I find this group so arrogant and full of hubris that I for one am hoping the case gets thrown out!
    Poor Howlin’ Wolf must be rolling in his grave thinking these young white boys now lay claim to his sound…

    Reply
    • paul
      paul

      Well gee @MusicLawyer, I don’t know… maybe because I read the complaint which included the Twitter post as an exhibit? And cited that specific Tweet as evidence that a specific song was ‘interpreted’ in a manner that was infringing?
      your turn.
      /paul

      Reply
  10. Central Scrutinizer
    Central Scrutinizer

    Another story that compels DMN commenters to prove how little they know about copyright law. Please folks do yourself a favor, go read a few articles at copyhype.com and educate yourselves.
    Anyway, this case probably has more merit in the right of publicity/Lanham Act claim than in the copyright claim

    Reply
  11. The Voice of Reason
    The Voice of Reason

    Why is it called The Jon Spencer “Blues” Explosion? They’re anything but Blues. They SUCK
    And by the way, I wouldn’t know a Black Keys song if I heard one. I did see them on SNL or something and they suck beyond belief.
    They sure to complain a lot though

    Reply
  12. GB
    GB

    Everyone builds on everyone else’s work. That’s how we create. In this case however, rather than copying the feel or production template of Howlin’ and applying it to an original piece of music (which is what the Black Keys have done in much of their work IMHO), whoever ‘wrote’ the music was trying to get as close to the Black Keys song as they could in order to avoid paying the Black Keys. Sadly, it’s a really bad attempt. Do I think it rises to infringement and sets a precedent? No. Do I think it’s bad music? Yes. Pizza Hut and their ad agency should be embarrassed and the Black Keys did the right thing to rattle everyone’s cage. The intent is the big thing here and it’s obvious from the twitter exchange what was going on. The ‘musical interpretation’ comment is laughable. If it’s a musical interpretation of a song, that to me implies a new arrangement of Howlin’ which means they would have to pay for the publishing rights and not the master rights. Had it gone to court, Pizza Hut would probably have lost on that comment alone.

    Reply

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