Black Keys Sue Pizza Hut for Song Theft
The Black Keys, a duo from the rock mecca of Akron, Ohio, have sued Pizza Hut for copyright infringement. The suit concerns this Pizza Hut commercial (warning: lousy audio), which allegedly contains portions of their single “Gold on the Ceiling.”
Based on what I’ve been able to hear of the Pizza Hut commercial, it’s not entirely clear if the ‘Hut (people call it that, right?) uses the actual recording or if they just hired a band to make a reasonable facsimile of “Gold.” Either way, it’s probably not good news for Yum! Brands, owners of Pizza Hut, Taco Bell, and whatever they’re calling Kentucky Fried Chicken these days.
There are two scenarios to consider in this type of case; I’ll take a look at both below.
Scenario 1: Pizza Hut Used the Original Recording of “Gold on the Ceiling” Without Permission
This is almost too stupid to contemplate. Raise your hand if you think a song can be used in a commercial without permission. I see no hands; you all pass the quiz. That would be about as clear-cut a copyright violation as it’s possible to contemplate. Having been in a few bands, I can think of no quicker road to riches for a musician than having a major corporation steal your recording and use it in a nationwide commercial campaign.
Let’s assume that’s not the case, which leads us to…
Scenario 2: Pizza Hut Used a Sound-Alike Recording
I discussed a seemingly related issue in a blog post last July. My faithful readers will remember that I discussed a case in which…
…musician Tom Waits sued Frito-Lay after the company used a Waits soundalike to sing a song very similar to his hit “Step Right Up.” Frito-Lay had previously contacted Waits asking him if they could use his song in the advertisement. Waits refused to oblige, which prompted Frito-Lay to use an impersonator. The 9th Circuit Court of Appeals (a Federal court whose jurisdiction includes California) affirmed an award of $2.375 million for Waits, which in 1992 made him one of the first artists to successfully win a lawsuit against a company for using an impersonator without permission.
Sounds pretty good for the Black Keys, right? Maybe not. There are no vocals in the Pizza Hut commercial. So while it’s possible that a musician may have a right of publicity in their instrumental sound, I’m not aware of any legal precedent on that point (if there’s a case that I’ve missed, someone please let me know).
More likely, the Black Keys will have to claim that Pizza Hut infringed their copyright by creating a nearly identical song. The most famous case in this area of jurisprudence is Bright Tunes Music v. Harrisongs, in which former “quiet” Beatle George Harrison’s song “My Sweet Lord” was found to infringe the Crystals’ 1963 R&B hit, “He’s So Fine.” Here’s a link to a video comparing the two songs.
Ruling against Harrison, the court stated:
Did Harrison deliberately use the music of He’s So Fine? I do not believe he did so deliberately. Nevertheless, it is clear that My Sweet Lord is the very same song as He’s So Fine with different words, and Harrison had access to He’s So Fine. This is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished.
The Black Keys could certainly hope to obtain a similar result. After all, “He’s So Fine” was several years old when “My Sweet Lord” came out. “Gold on the Ceiling” came out in late 2011. The song peaked at #2 on Billboard’s chart of US Rock Songs, and at #1 on their US Alternative Songs chart. The Black Keys recently sold out Madison Square Garden. It will be challenging at best for Pizza Hut to claim lack of knowledge of or exposure to the song.
As in most of these types of cases, I predict there will be a quiet settlement. If anyone notices the Black Keys flying around in a new tour plane stocked with a lifetime of free pizza, you can assume the check was paid by Yum! Who knows – maybe the Black Keys will take them down so hard, Yum! Brands will even have to sell off that annoying exclamation point.
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