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.)