Beach House

Remember that VW ad that egregiously ripped off Beach House’s “Take Care”? Of course you do, it is embarrassing and reprehensible on the part of the ad agency, DDB, that created it. Beach House tried to play it classy, addressing their confused fans and having them direct their anger squarely at DDB — until “VW cop[ped] out big time” with this statement (via facebook.com/beachhouse):

“We greatly respect the talent of Beach House and never set out to replicate a specific song of theirs or anyone else’s. Most important to us was to find a track which matched the narrative of the advert, telling the story of the daughter’s growing up and the evolving relationship with her father, and we believe we have achieved this in the final edits,” VW said in the statement.

This understandably incensed Beach House. Incidentally that sentence marks the first time “incensed” ever appeared anywhere near “Beach House” without standing solely for good smells, so you know shit is real at the moment. So real that the NYTimes — sniffing out a juicy story, a trend piece, and a culpable corporation — got in the game, pulling quotes directly from Beach House’s Alex Scally, the band’s manager Jason Foster, a VW representative, and the attorney the band’s consulting in the UK. Because, despite the uphill battle bands face in this context (which is why Sigur Rós has never sued despite being the most perennially pillaged band in the ripoff game), VW is striking a villainous pose, and there just may be a legal theory that Beach House can employ to see some justice. Here’s how it goes:

Since musicians cannot copyright “instrumental style, mood, or overall sound,” says the NYT, traditionally artists were left to prove an allegedly derivative work plagiarized melody, lyrics, or other elements to the point of substantial similarity. However, substantial similarity is a difficult thing to prove with something as squishy and subjective as “mood” and “sound-alike” in music (as a lawyer, let me tell you: the law doesn’t do too well with subjective and squishy). Musicologists get involved and the whole thing devolves into a protracted legal discussion that benefits defendants with deep pockets (VW, possibly) and makes litigation cost prohibitive for deserving plaintiffs (Beach House, possibly).

The judiciary and creative lawyers have recognized this issue, and have evolved another theory to help artists get their just desserts: call it the “right to publicity.” Under this doctrine (codified into law in many states), Beach House could have standing if they can prove that their fans were confused by the similarity between VW’s ad and their song, thereby damaging their reputation in leading people to believe they endorsed a product they adamantly refused to endorse. The onus switches from proving the music’s similarity to proving the actual affect of the ripoff. The NYT notes that the UK has an analogous tort statute called the “passing off” doctrine, which is important since this is a UK ad.

A few more facts the NYT lays out to bolster Beach House’s standing in the eyes of the public: VW mirrored the key stylistic moments and key lyric of “Take Care” (e.g. “I’ll take care of you” becomes “I’ll watch over you”) after relentlessly wooing Beach House (at least five separate offers along with sending a draft of the spot where the song was actually inserted) to no end; facts from band manager Jason Foster to help prove the wooing (“I’d be happy to jump on a call, fly someone to the U.S., offer more money and listen to anything you have to say,” VW said to him). To salt up the wound, a VW rep told the NYT they “greatly respect the talent of Beach House and never set out to replicate a specific song of theirs or anyone else’s.” I love that sentence. It’s sort of like when people say “No disrespect, but…” and then proceed to disrespect the life out of you. It’s a cool move. Good quote, VW. Very classy.

Says guitarist Alex Scally: “The fact there is such lyrical similarity, and the fact the snare drum comes in when this message comes in, just feels very invasive. They are using not just textural things, which people take all the time, they are using an actual musical moment.”

Beach House have not filed papers yet. I generally dislike Kickstarter projects, but I would donate the fuck out of one that helped Beach House take VW to task. Even if it did have a chilling effect on our robust “Did X Company Rip Off Y Band?” franchise. Especially if it did have a chilling effect on that franchise. Let’s not let this happen anymore.

Previously: Does This Volkswagon Ad Rip Off Beach House? (Answer: Yes, It Does, Shamefully.)

Comments (37)
  1. Corporations and the politicians that serve them will get away with anything. Just look at this week’s passwords shambles at linked.in and all the lies and the systematic withholding of information going on in that case.

    To paraphrase Rolling Stone’s Matt Taibbi, they’re a giant squid sucking the life blood out of everything.

    Their deep pockets will always win. And even if they lose and have to pay, they will still have won. It will probably end up being a bargain for them.

  2. It’s so great to see how artist’s rights will be protected once all those ACTA and PIPA bills are passed.

    Oh! So this kind of theft, which is probably about just as hurtful to the band’s revenues, is not regulated in those bills? – bummer

    • It is way more hurtful. A downloaded song can lose a band between 4.5 and 40 cents, depending mostly on the kind of deal they have worked out with the record label. VW would probably have paid Beach House at least 50K to use this song (between master-use and synchronization rights) seeing as they literally based the entire commercial on the song.

  3. I just want to point out that car commercials have been shamelessly ripping off the sound and melody of various popular music for a long time as a way to avoid paying licensing fees.

  4. I occasionally licenses my music out and frequently I see requests like this one that I came across this morning:

    “(Insert company/film here) is nearing completion of post-production on their latest feature film and they are looking for a few replacement tracks (sound-a-likes).

    These are the songs they are looking to replace:

    The Beastie Boys “Stand Together”
    Tupac Shakur “Nothing to Lose”
    Black Sheep “Black With N.V. (No Vision)”
    The Roots “Do You Want More”

    Songs submitted should be very close in style, arrangement, melody, and beat to one of the tracks above. Licensing fees for sync and master rights usage can be negotiated between the artist and producer. All songs submitted should be of high-broadcast quality!”

    Pretty shameful and should be illegal in my opinion.

  5. everybody who makes art is ripping someone off. this is a very slippery slope. probably a very shitty situation to be in.

  6. Huey Lewis got money when the Ghostbusters theme was released (a blatant rip-off of “I want a new drug”). Of course, there was another component to this in that the filmmakers first went to Huey Lewis wanting to use “I want a knew drug” for the film, and he said no so they went and ripped it off. Still, it has happened.

    • Good point. So Beach House’s claims of plagiarism should reasonably be bolstered by the fact that the ad agency that produced this spot had been courting them for weeks in an ultimately futile effort to secure the rights to “Take Care.” That’s where this gets to be crystal clear.

      I recall reading a section on Yo La Tengo’s website a few years back, when I first got in to them (around the time “Summer Sun” was released). I just found it again, and thankfully all the mp3s are still up. Not the exact same situation, but in short a British cellular provider offered them money to use “Tears Are In Your Eyes” in an ad (a song that, if you don’t mind me saying, dials in the same vibe that Beach House specializes in these days). The band refused, but offered to compose a piece of original music instead. The company refused, and the band offered to do a different mix of the song, removing some of the vocals and rearranging a few things. The company paid them a little to produce it, but ultimately refused it. Later, the band was in the UK, and while seeing a movie at the theater, saw a cell-phone commercial using soundalike music. Ira Kaplan makes some pretty great comparisons to Bill Murray in “Lost In Translation” — worth a read if you ask me ( http://www.yolatengo.com/sellout/index.html )

      What we need is a class action lawsuit — “Originality vs. The Man”

  7. Amrit, you’re a lawyer? Awesome. You’ve unknowingly helped to calm my nerves. When I graduate next year and can’t find a legal position to pay off my loans, perhaps I too can write for a super-sweet website.

  8. “I generally dislike Kickstarter projects…”

    Why, Amrit? Please elaborate.

  9. How about throwing shit at the actual artists who recorded that tin pan alley beach house knock off?

    • The production company will be joined in the action, I’m sure. The right move is to sue VW because they have the bigger pockets.

    • Its more than likely that VW contacted them and told them to make a song like it. We can’t assume it was their idea, or that they even consider themselves ‘artists’ for that matter

    • I’m not going to kill someone who is getting by doing glorified jingles. Their a musician just trying to feed themselves.

    • Probably because they were likely operating on VW’s behest.

      To slay the giant corporate ogre, you swing for the head, not the toenail.

  10. Tom Waits won a similar law suit in the 80′s when Doritos used a sound alike song to “Step Right Up”. They were different lyrics and music but still was deemed able to cause confusion for his fans.

    • A car company tried to do the same thing to Waits. They used a soundalike of “Innocent When You Dream,” and he won the suit, saying they must have thought the lyrics were “Innocent When You Sceme.”

      In fairness though, “Step Right Up” always made me hungry for the nacho cheese nutrition of Doritos.

  11. I will never buy a Volkswagen

  12. I wonder what Joe Howse would say about all this?

  13. all is fair in love, war, and art…if soundalikes were illegal, the rolling stone and led zep would still be serving time

    • There’s a world of difference between using someone as an influence and begging someone to let you use their song, then just making a similar one when they refuse.

      • ok…but Zep literally ripped off Willie Dixon and Jake Holmes, especially on the first Zep record. You may not know enough about music history to reply right away but do yourself a favor and look it up, comparing the music. I love Zep, don’t get me wrong, but the point here is that the “fine lines” get blurred constantly and a situation like this, where it’s just a stupid soundalike of a Beach House song for a commercial, is really insignificant when you look at the bigger picture.

        You can tell the song used in the VW commercial WASN’T Beach House, right? So the commercial may have been more effective if it was Beach House? Do you think that because the song sounded enough like Beach House, that the commercial had its impact of being cool, engaging, and youthful?

        • I nearly couldn’t bother replying to this after reading your oh so patronising tone, but your post is besides the point anyway. It’s not just the similarity of the tunes (in this case or yours) that’s the question. It’s the fact they asked Beach House to use their song and when they refused, just commissioned some people to make as similar a one as they could. It’s the sheer cynicism of it, and a pretty open and shut case if they didn’t have a tonne of highly paid lawyers behind them.

          • I honestly wasn’t trying to be patronizing so I’m sorry if it came off that way.

            If your biggest issue is in the fact that they tried to officially use Beach House and then did something wrong by going to a sound-alike when Beach House refused, then I’ll just say if it’s not actually plagiarism, then it’s just like a million other songs out there that were intended to sound similar to another for the sake of personal or commercial gain. That’s life and it could be a lot worse. If a fair judge/jury determines that the song indeed plagiarized, then you actually have a point. But until then, there are bigger copyright and commercial use of art-related issues to mull over.

            Coldplay’s “Clocks” was imitated in commercials over and over after its release and i bet nobody here bitched about the principle involved…and rightly so. Meanwhile that “ABBC” arpeggiated chord part was much more of an identifiable, novel trait of that song than this wanna-Beach House tune has to offer. I didn’t care enough to research it at the time but if anybody knows if Coldplay ever publicly made a stink about it, I’m now curious to find out about it.

          • Apology accepted, I’m sorry I took it in a way it wasn’t intended.

            Well I’ll plead guilty as charged for not being as interested if it happened to Coldplay which is obviously biased on my part and you’ve got me red handed on that. I would say though that for a band as rich as Coldplay it becomes less of an issue for me, although morally you’re right, it’s identical.

            I probably wouldn’t have thought twice about this case, like you say ‘that’s life’ (although I wish it wasn’t sometimes) but it’s the fact that they asked first I can’t get over. There must have been a point where the execs involved considered what Beach House would think/do and thought “Fuck em!”. That sticks in my craw.

            I’ll also admit to a healthy (in my opinion) dislike of this sort of thing anyway. I caught mad hatred in another thread for criticising the already well-off likes of Damon Albarn and James Murphy for advertising Converse. So if you disagree with my opinion on that then you can probably consider my judgement clouded anyway.

          • Word. I agree that it sucks, either way.

            In case you’re unaware, James Murphy did a promotion for Nike back in 2007 (http://en.wikipedia.org/wiki/45:33) before he was as big as twhen he did the Converse thing…Nike owns Converse…and Cornerstone Promotions is the marketing company behind both moves. So it’s not that unexpected…

Leave a Reply

You must be logged in to post, reply to, or rate a comment.

%s1 / %s2