The Black Keys by Danny Clinch

The latest dispatch in the latest saga of Artists We Cover vs. the Madison Ave. music supervisors/sound houses that may be illegally jacking their style comes via the Black Keys and not one but two bigtime corporations. This hasn’t gone to a court of law just yet (they’re still in the pleadings phase of the suit), and “innocent until proven guilty” is a powerful legal maxim, but the court of public opinion has been rendering its verdict for awhile. To refresh your recollection, the specifics are: The Black Keys claim a Home Depot spot cribbed off of “Lonely Boy,” and that Pizza Hut took its cues for an ad campaign from “Gold On The Ceiling.”

And today’s news:

According to the AP, is that Pizza Hut and Black Keys deny said allegations. They will fight the case, and request that their attorneys fees be reimbursed if victorious.

You could say that, if guilty, Pizza Hut and Home Depot were silly for having ripped off an album as massively popular and easily identifiable as El Camino. But of course, that’s the point with these rip-off situations: The more popular the song, the more powerful the brand association for the advertising company. And the more powerful the advertising company, the more willing they are to take their chances and rip off a popular song: With deep pockets, a fight in court becomes a war of attrition between an unholy rich defendant and a less well situated plaintiff. Big companies factor lawsuits into their advertising expense budgets; they practically count on them.

The last time we looked at this in depth was with Beach House vs. Volkswagen, wherein we learned that while it is incredibly difficult to prove actual musical theft, it is easier to use the judicial doctrine of “right to publicity.” By using that court-created theory, plaintiffs need not prove actual musical theft, but face the somewhat lower burden of demonstrating the likelihood that the commercial in question could confuse the band’s fans into thinking their favorite band gave their song to a commercial, thereby affecting their reputation.

Not sure what theories are being pursued here, but if we find the court docs, we’ll update.

Comments (7)
  1. Couldn’t find an example (maybe they’ve been removed?), but has anyone heard the recent YMCA commercials that BLATANTLY rip off “Lisztomania”? It’s pretty egregious

  2. If the Black Keys are victorious in one or both cases, would a precedent be set that aids smaller bands with smaller budgets? This is clearly a widespread issue, and if any band can do it, it might be the Black Keys. I wonder if this would be advantageous long term to the smaller bands.

  3. At least in the Home Depot case, the Black Keys have only one count: Copyright Infringement under 17 U.S.C. 106 and 501, and the basis of the claim is the use of the actual song. There are no averments to “right of publicity” in the complaint.

    The Home Depot’s Answer is basically the standard, “lacks sufficient information to admit or deny” so we deny. Most of the defenses are also standard, but there are defenses of Innocent Infringement, De Minimus Use, Fraud on the Copyright Office, and Public Domain. None of these defenses is expanded upon as of yet, however.

    I got this information by viewing the documents online through the Federal Court’s PACER system.

  4. The Black Keys also used to do shows where they wore orange aprons and did a shitty job matching paint colors, so Home Depot’s clearly done this to them before.

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