Singer Sues Google For Not Asking Her Permission To Use A Licensed Song In Its Cell Phone Commercial

from the so-much-stupid-and-so-many-layers-of-permission dept

Darlene Love, the voice on the Phil Spector-produced hit "He's A Rebel," is suing Google and its ad producer, 72 & Sunny, for violating her publicity rights by using a song she recorded in one of its ads without her permission.

The lawsuit seems to revolve around California's much-maligned "right of publicity" law, which allows plaintiffs to sue entities for using pretty much anything about them, rather than just for bog standard copyright infringement.

That's going to be key because it seems clear Google cleared the rights to use a song of hers in its Nexus ads. That would just leave the extra "permission" Love feels she's been screwed out of: the "right" to block Google from using a legally-licensed track.

A voice does not end up in a commercial advertisement by accident. Rather, a number of people are involved in the creation of commercials. The voice of a famous performer, singing a famous song is selected for the express purpose of trading on the performer’s goodwill. Defendants consciously and deliberately selected Love’s vocal performance of It’s a Marshmallow World for their commercials.

However, Defendants refused to take any steps to obtain Love’s consent and had no reason to believe she had or would consent to such use. Instead, Defendants took deliberate measures to evade contacting her or obtaining her permission.
Love's voice was used, as it was part of the licensed track. Her goodwill remained where it always was -- loaded like a spring trap, apparently. She accuses Google of deliberately using a non-union ad producer to ensure her union-granted "rights" (whatever they are…) were routed around.
An honest company, doing business in good faith, would not attempt to deprive Love of the benefits of the union protection and would have engaged a SAG-AFTRA affiliated advertising agency so that the performer (and the background singers) would receive at minimum, the union-mandated benefits.
So… medical coverage? Prevailing wages? This part isn't explicitly spelled out, but Eriq Gardner points out that union members may be eligible for separate payments. But Love's lawsuit never claims Google refused to pay her. She only alleges it did not seek her permission to use her "goodwill."
Defendants actions were despicable and in conscious disregard of Love’s rights. They turned her into an involuntary pitchman for products of dubious quality. They created a commercial that falsely implied to the public that Love had endorsed Google’s products.
That's a stretch. It's obvious Google chose the song for its lyrics (advertising a new phone containing its "Marshmallow" version of the Android operating system), rather than for Darlene Love's $75,000-worth of "goodwill."

Love gets her shots in at the nationally-acclaimed ad agency as well, claiming it colluded with Google to screw her out of something the lawsuit fails to specifically name. (But apparently worth $75,000+)
Google engages in anti-labor advertising practices and in an effort to harm Love, hired Sunny, a scab shop that utilizes recordings of artists created under the protection of collective bargaining agreements, without themselves becoming signatories and complying with the union-mandated obligations for the reuse of phonograph records in commercials.

[...]

Google’s conduct was so loathsome that it intentionally hired a disreputable non-union affiliated advertising company and the two of them deprived Love of her union protections, all to enrich themselves at her expense.
As you can see, some parts of the lawsuit read like someone's emotional blog post and -- I can't state this enough -- there are no accusations in the filing that Love did not receive compensation for the licensed use of her work. The agreement she cites as the basis for her beef with Google and its "scab" ad agency says nothing about seeking an artist's permission. It only notes they may be entitled to an additional, separate royalty. Nowhere in the suit does Love claim she did not receive the royalties she was entitled to. Instead, she's trying to use a bad law to extract $75,000 from Google simply because if they'd asked if she would like to be in its ad, she would have said no.

Can she win this? Anything's possible. The unauthorized use of someone's likeness -- which includes their voice -- can be considered a violation of the right of publicity under the local law. There's a good reason why she's brought this lawsuit in California, rather than New York, where she lives and Google has an office. In California, her suit isn't pre-empted by federal law, which means she can use the friendlier local law to pursue damages.

But she'll have to make a stronger case that Google intentionally traded her goodwill for thousands of dollars -- rather than simply licensed a song with "marshmallow" in the lyrics. It really seems like her beef should be with her union for not ensuring her the chance to reject the use, rather than Google, which apparently paid the licensing fees and handled everything correctly on its end of the deal.


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 22 Jan 2016 @ 10:40am

    I agree, the world would be better off if Google could just do whatever it wanted.

    reply to this | link to this | view in chronology ]

    • icon
      Dark Helmet (profile), 22 Jan 2016 @ 10:46am

      Re:

      So jumping through the quagmire that is music licensing schemes equates to doing whatever they want. Got it....

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 22 Jan 2016 @ 11:08am

      Re:

      I agree, the world would be better off if Google could just do whatever it wanted.


      That is some Grade A trolling. Go pat yourself on the back.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Jan 2016 @ 11:52am

      Re:

      Damn that google! Thinking it can legally do things and then use those legal things they purchased legally to explicitly do the legal thing they want to do... and then... do the legal thing!

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 25 Jan 2016 @ 3:26am

      Re:

      Compared to the music industry, which has conspired to make legal usage of their product so convoluted and difficult that services that routinely attempt to follow the law are still being sued? Yeah, it probably would be.

      Fortunately for you, the situation you've presented in your silly defense of that system is not something that anyone in reality was actually pushing for.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Jan 2016 @ 10:53am

    "Darlene Love, the voice"

    Well there you go. She's a voice. She's a singer. Can she produce a contract where she was hired or contracted for her goodwill rather than her voice? Does her goodwill change her voice? Does lack of goodwill ruin the song?

    To summarize: What the fuck does goodwill have to do with music?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 22 Jan 2016 @ 11:18am

      Re:

      sounds kinda like a work for hire situation on the original recording

      reply to this | link to this | view in chronology ]

    • identicon
      Whoever, 22 Jan 2016 @ 12:45pm

      Re:

      To summarize: What the fuck does goodwill have to do with music?


      Money. Google has it and she wants it. That's the beginning and the end of this.

      reply to this | link to this | view in chronology ]

      • icon
        tqk (profile), 22 Jan 2016 @ 5:14pm

        Re: Re:

        Money. Google has it and she wants it. That's the beginning and the end of this.

        Au contraire. She's butt-hurt that Google's a non-union shop and it's consorting with another non-union shop to exploit the workers, all of whom should be working in union shops except for bastards like Google who make it possible for non-union shops to employ workers outside the tender loving care of the union, obviously to exploit said workers.

        She's just another form of monopolist, the "union jobs are the only fair jobs" kind.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Jan 2016 @ 11:14am

    This is why I always only deal in Fair Trade marshmallows

    reply to this | link to this | view in chronology ]

  • identicon
    Anon, 22 Jan 2016 @ 11:38am

    Not likely she'd refuse

    I suspect this is a shakedown, and the union blah-blah is just eye candy for the lawsuit.

    I seems to me to be self-evident, when your work is available for purchase/license to the general market, it comes with an implicit consent to use that work for what it was licensed for, once the contract to use it has been entered into. One should not be crying foul to attempt to negate a committed licensed use. If Ms. Love truly did not want her voice used by non-union ad agencies, the licensing authority should have been informed beforehand. What, she didn't have that veto right? Then she implicitly consented in 1965. If the intent of the California law was to override all established audio recording license protocols, presumably it shuld be spelled out in the law.

    not to mention the flimsy premise - almost nobody hearing the ad would even know its union status, so the claim it cheapens her union bona fides image is bogus.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Jan 2016 @ 11:41am

    I didn't know who she is...until I Googled her.

    reply to this | link to this | view in chronology ]

  • identicon
    David, 22 Jan 2016 @ 11:42am

    Lesson learned.

    Don't ever use Darlene Love's music, tracks, anything.

    Google should stop using the ad, and sue the licensing organization to get the licensing fees back since Googles license did not impart the rights they paid for.

    And I repeat, never use Darlene's tracks again. Just in case.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Jan 2016 @ 11:49am

    Didn't use a union ad agency?

    That's probably because their prices are obscene... the problem with unions is that they want to take a chunk of the proceeds for themselves - much like a leech. In this case, it's clear that the union is doing little for Love... other than giving her an excuse to bitch about what happened.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Jan 2016 @ 11:50am

    I hope she wins

    I hope she wins. Hear me out. Sometimes the best way to change the status quo is to cluster fuck the shit out of it so badly that some sort of action has to be taken at a legislative level to uncluster the fuckery.

    If she wins, that means the crazy Right of Publicity shenanigans will have some sort of precedent, which means that every singer, every actor, every person who's done anything will have some level of claim in the permission culture cacophony, thus muddying the waters even more. But, what's even better, if she wins that means the Right of Publicity will effectively trump any copyright and license to that copyright held by rightsholders.

    Could you imagine that? Rightsholders getting knocked down a peg in the money food chain? If she wins the XXAA groups will be gunning for reform so fast it will make your head spin.

    So more power to you crazy lady! I hope you win!

    reply to this | link to this | view in chronology ]

    • icon
      beltorak (profile), 22 Jan 2016 @ 12:35pm

      Re: I hope she wins

      unfortunately that's rarely how it works. bad laws based on bad philosophy almost never get repealed - they just get "refined" to not apply to this one hyperspecific circumstance, or they get broadened and create the potential for much more collateral damage. it reduces to trying to force the legislative body that they made a mistake (or acted maliciously).

      reply to this | link to this | view in chronology ]

    • icon
      DannyB (profile), 22 Jan 2016 @ 2:57pm

      Re: I hope she wins

      I have to agree.

      This might make music licensing so convoluted and complex that companies just quit doing it.

      Good riddance.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Jan 2016 @ 1:14pm

    There is a simple solution to Love's issue. She doesn't have to sign a contract to sing a song. The moment she does, she no longer owns the copyright; instead it belongs to someone else because she got paid then and there and it becomes a work for hire.

    We see something similar to this all the time. Silly season comes around when elections kick off. Some political party actually pays to license a song for their campaign and the band that made the song has issues with that. Like it or not the band no longer 'owns' the song any more than Love does. They can bitch but if it has been licensed there's not a damn thing else they can do.

    Love's attempt looking like nothing more than attempting to gold mine Google over traditional actions and very carefully cherry picking for state laws.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Jan 2016 @ 1:47pm

    Not enough pro-billionaire corporation, artist hate here. Douche harder.

    reply to this | link to this | view in chronology ]

    • icon
      DannyB (profile), 22 Jan 2016 @ 2:55pm

      Re:

      It's not artist hate.

      It's artist stupid.

      Google did the right thing in paying to license the music. What are you suggesting that Google did wrong?

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 22 Jan 2016 @ 9:58pm

        Re: Re:

        Ah but you see, as Netlix and this example(along with many others I'm sure) show, it's not enough that you pay for the content, you now have to pay in just the right way, or it's no better than piracy, despite the fact that you paid. /s

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Jan 2016 @ 5:27pm

      Re:

      Yeah! All corporations are evil and all artists are saints purely in it for the advancement of culture!

      reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 25 Jan 2016 @ 5:47am

      Re:

      Not enough pro-control freak, common sense hate here. Douche harder.

      Seriously, the "I made it, I own it" trope is getting old. Love believes she owns is because she sang it. She's not even the songwriter, or the producer, or the sound engineer, or a musician. Heck, by that logic the presser on the assembly line at the CD factory "made" it and is therefore entitled to a piece of the action. Where will this madness end?

      Copyright should begin and end with the right to distribute copies of the work in question for a limited time, for the advancement of the arts, etc. Let's get rid of this publicity nonsense, it's just petty rent-seeking.

      If Google paid the rent (licence fee) they're entitled by the terms of the agreement to use the song. If licensors don't like that they need to specify in the agreement what the song can or can't be used for. Even then I can see some washed-up has-been trying to cash in using an angle I've not considered. Then again, I don't "douche" in the sense AC @ Jan 22nd, 2016 @ 1:47pm has defined the word.

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 22 Jan 2016 @ 1:58pm

    Oh hey look another example of what happens when we give them stupid laws to abuse.

    How many more of these complex & convoluted you have to pay me 15 times stories do we need before we can expect change?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Jan 2016 @ 2:24pm

    Now that they have killed the goose that laid the golden egg they can find real work or die, like the rest of us.

    reply to this | link to this | view in chronology ]

    • identicon
      Wendy Cockcroft, 25 Jan 2016 @ 5:49am

      Re:

      The difference is, they're incentivised to continue creating for 70 years after turning up their toes and joining the Choir Invisible, unlike the rest of us.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Jan 2016 @ 3:00pm

    I once met a hooker by that name, not relative but trivia.Just sayin.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Jan 2016 @ 3:18pm

    It's unfortunate that, instead of suing like this, Love's camp couldn't somehow leverage the national exposure generated by Google's ad campaign as publicity for the new album that she released just this past September (said album including new songs by Bruce Springsteen and Elvis Costello).

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Jan 2016 @ 4:04pm

    Anonymous64 just hates it when due process is enforced.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 22 Jan 2016 @ 6:34pm

    Maybe Google should respond by commissioning a new recording of the song that doesn't use Love's vocals. Then they can tell her to where to stick it.

    reply to this | link to this | view in chronology ]

    • identicon
      Andy, 23 Jan 2016 @ 10:07pm

      Re:

      As she has her voice on the track and google are not paying her for being part of the advertisement could she sue for not actually having her body in the advertisement as this has caused her to lose acting costs for the advertisement. Maybe google should just use music in there advertisements that is free to use or where a google employee creates it for a laugh.
      I am sure google pays a hell of a lot of money for music rights all over the world, doing something like this is enough for them to stop completely and let all union artists fail at a much faster rate than they are right now.

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 25 Jan 2016 @ 3:33am

        Re: Re:

        Indeed. Actually, it wouldn't take too much for them to change their internal policies to only use CC licenced material but still pay the original artist despite that not being necessary under the CC. Maybe even get a discount compared what they're paying now. That would be a major F.U. to the traditional industry, Google would come off looking fantastic and some independent artists would be made very, very happy.

        But, people working under the mindset of the legacy industry have shown time and time again that they'll happily screw their own future if they think they'll make some money now.

        reply to this | link to this | view in chronology ]


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