In the world of music licensing, it is often the case that when a brand wants to use a specific song for its latest campaign, the artist either won’t license their material for the project or asks for a fee that is outside of the brand’s budget. It doesn’t have to be the case that all is lost at this stage as there are options available, but the riskiest is the ‘sound-alike.’
High profile examples of this in action occurred in 2012, with two cases involving US blues-rock band, The Black Keys. The band sued Pizza Hut and Home Depot for using unauthorised sound-alike versions of their songs in adverts. The original claims were for more than $75,000 each but were settled out of court for an undisclosed sum.
A sound-alike differs from a re-record as the publisher of the of the song will have given permission for a re-record, so that a new recording of the song can be created. A sound-alike is usually commissioned to sound as much like an original or popular song as possible, without obtaining a licence, either because it was declined or was too costly.
Another example is that of Volkswagen, which caused a stir in the indie music world when their television advert featured a song that drew comparisons to “Take Care” by American dream-pop act Beach House.
The law in these cases is rather complex and litigation can be costly, most likely requiring the help of a musicologist to analyse the similarity of the compositions. Even if the brand wins the case, the reputational impact may be far from desirable, particularly if the musicians’ fans form part of the demographic you’re trying to attract.
Brands are now competing for audience attention in an overwhelmingly saturated market where every aspect of a campaign matters. But what are the alternatives to using sound-alikes?
1. Opt for a re-record
Often it’s the specific recording that’s out of budget or not available for licensing, and a quick call to the publishers can clear the song for a re-record.
It can also be a more creative opportunity to put the brand’s unique stamp on the song, and re-record it completely differently. This can prompt an association with the original but reflect the brand’s unique ethos and character.
You only have to look to Lucy Rose’s version of a Primal Scream track for the Sony Xperia Z1 campaign, or the award winning re-records of songs from The Smiths and Keane commissioned for recent John Lewis campaigns, as prime examples of successful re-records.
2. Find an alternative
You may have your heart set on “Howlin’ For You” by The Black Keys, or “Every Teardrop Is A Waterfall” by Coldplay, but with a bit of research, you may unearth a song every bit as perfect for your campaign. Explore the bands’ influences, look for independent artists or upcoming bands gaining attention, or, if you’re working with a music supervisor they can advise on the numerous possible options.
Most music supervisors brief out project requirements to label and publisher contacts, who will send back a selection of songs they think fit the “sounds like X-song from Y-band” brief. It’s then the job of the music supervisor to pick out the best ones from the responses.
Our advice would be to steer clear of the potential for legal and reputational issues that can come with commissioning a sound-alike. When the song you want is not an option, take it as an opportunity to get creative.
Alison Corbett is director of Ricall