Apple, ad agency sued over voice sample used in iPhone 6 TV commercial

AppleInsider

The lead singer of '70s a capella group The Persuasions is suing Apple for using a song by Jamie xx in an iPhone 6 TV commercial, claiming the ad violates his "right of publicity" due to the track containing a sample of his voice.

Filed in the Superior Court in the Central District of Los Angeles, the complaint by singer Jerome Lawson against Apple and advertising firm Media Arts Lab concerns the use of the song "I Know There's Gonna Be (Good Times)" from the Grammy-nominated Jamie xx album "In Colors", according to the Hollywood Reporter. The 2015 Jamie xx track uses samples taken from The Persuasions' 1971 song "Good Times," which in turn was used by Apple in the commercial.

Lawson's complaint primarily stems not from the rights to The Persuasions' song, but one of the right to publicity under Californian law.

"Lawson's voice is prominent and recognizable in the Apple commercial," the complaint reads, suggesting that since fans of The Persuasions could have recognized his voice, the fans were "deceived into falsely believing that Lawson endorsed Apple and the iPhone and/or that Lawson consented to the use of his voice to advertise products."

The second part of the complaint alleges a violation of collective bargaining agreements with the Screen Actors Guild (SAG) and the American Federation of Television and Radio Artists (AFTRA) that allows for separate bargaining with singers over commercial licensing. It is claimed Lawson was contacted by a Media Arts Lab business affairs official six months after the ad aired, offering him the minimum amount required under SAG rules.





According to the complaint, Lawson is "injured" by the sample's appearance, to an amount "believed to exceed" $10 million. The same figure is quoted for the collective bargaining section, as well as other unvalued fees and damages.

This is not the first time the Jamie xx song caused legal issues. Allegations about misusage also surfaced at the time of the album's release, suggesting the artist hadn't licensed the samples, but it later turned out record label Universal had indeed cleared its use. Jimmy Hayes, another Persuasions member, claimed he was "told about it but forgot."

The lawsuit follows after one made last yet against Google by Darlene Love, for the song "It's a Marshmallow World" used to advertise Nexus smartphones, as well as one against Scripps for HGTV commercials. Both cases were eventually dropped before a major ruling could take place.

xx_sample by Eriq Gardner on Scribd

ericthehalfbee

I love how these people don't sue the artist who used the samples, but go after someone down the line who used the artists song. I guess Apple has bigger pockets, so let's sue them instead of Jamie xx. This reminds me of suing Apple because the cell modem violates a patent, instead of suing the company that made the modem.

And $10 million? What a joke. How exactly has he been harmed?

damn_its_hot

"$10 million" is crap. There is no way in hell his endorsement or that song (or album) would ever make that much. I would like to know how well the song sold since 1971 -- I would be willing to bet it didn't make that much in the 40+ yrs of its release. Apple should have gotten permission though -- probably wouldn't have cost more than $50 and a Colt 45 or MD20/20.

Soli

Lawson recorded his sampled part back in 1971 and the rights own, Universal, was connected prior to the ad's release. Copyright law clearly trumps CA's right to publicity, but he knows this—this is just a way for him to get some publicity on the back of a company that is prominent in the media.

I do love the original.

lkrupp

ericthehalfbee said:

I love how these people don't sue the artist who used the samples, but go after someone down the line who used the artists song. I guess Apple has bigger pockets, so let's sue them instead of Jamie xx. This reminds me of suing Apple because the cell modem violates a patent, instead of suing the company that made the mode.

And $10 million? What a joke. How exactly has he been harmed?

Ask any ambulance chasing lawyer. It’s ALL about who has the deepest pockets.

thisisasj

Each unique use of a composition or recording requires permission. That's just a fact of copyright law. The use of sampling has complicated things even more, because a snippet here, and a loop there, all have to be cleared. In the instance of "Good times" being used by Jamie xx, it looks like the company who controls the master recording (Universal) got permission from one of the rights holders. What isn't clear is if in the Persuasions' agreement with Universal allows Universal to speak for them regarding rights to use the recording. Also what's not clear is if Apple and the advertising agency got permission from Universal, or perhaps even the forgetful group member. The potential injury is quite clear: if the plaintiff had given his permission, he could have negotiated compensation for the use with Apple and/or the advertising agency. For example, he could have gotten, say, a percentage of the revenue generated by each airing of the commercial. It's like how Apple pays artists/record labels at set fee each time a song is streamed. The plaintiff could have had quite a nice payday.

mike1

thisisasj said:

Each unique use of a composition or recording requires permission. That's just a fact of copyright law. The use of sampling has complicated things even more, because a snippet here, and a loop there, all have to be cleared. In the instance of "Good times" being used by Jamie xx, it looks like the company who controls the master recording (Universal) got permission from one of the rights holders. What isn't clear is if in the Persuasions' agreement with Universal allows Universal to speak for them regarding rights to use the recording. Also what's not clear is if Apple and the advertising agency got permission from Universal, or perhaps even the forgetful group member. The potential injury is quite clear: if the plaintiff had given his permission, he could have negotiated compensation for the use with Apple and/or the advertising agency. For example, he could have gotten, say, a percentage of the revenue generated by each airing of the commercial. It's like how Apple pays artists/record labels at set fee each time a song is streamed. The plaintiff could have had quite a nice payday.

In all likelihood, and assuming got permission from Universal, he would have been offered scale and if he balked, told to forget it.

602warren

damn_its_hot said:

"$10 million" is crap. There is no way in hell his endorsement or that song (or album) would ever make that much. I would like to know how well the song sold since 1971 -- I would be willing to bet it didn't make that much in the 40+ yrs of its release. Apple should have gotten permission though -- probably wouldn't have cost more than $50 and a Colt 45 or MD20/20.

Why would Apple have to ask permission of the artist? Thats the ad agencies job, they're the ones who created the commercial.

brakken

Ad agency execs should be penalised for damaging Apple's reputation.

MplsP

I wonder if the "excess of 10 Million" amounts is essentially standard wording based on some law, but yeah - I find it hard to see how he can claim $10M in damages for that.

I can't believe any ad agency that's been around for more than a week wouldn't know to obtain permission to use a song in an ad like this. If the sample of his voice was licensed for the song, then I would think that its use would be covered when the ad agency obtained permission to use the song. 

cali

"Man sues dog for using flea shampoo that contains his formula"

Mikeymike

Very confusing. I assumed the 'sample' was all sewn-up in the agreement with Jamie xx, and that would be where it all ends.
{shrug}

(also; This was one of my very favorite of the SOI commercials, particularly because of this music)
(my 'alltime' favorite being the Hippopotamus one)

lorin schultz

ericthehalfbee said:

I love how these people don't sue the artist who used the samples, but go after someone down the line who used the artists song. I guess Apple has bigger pockets, so let's sue them instead of Jamie xx. This reminds me of suing Apple because the cell modem violates a patent, instead of suing the company that made the modem.

damn_its_hot said:

[...]  Apple should have gotten permission though -- probably wouldn't have cost more than $50 and a Colt 45 or MD20/20.

Just curious -- did either of you read the article before commenting? I only ask because it addresses the issues both of you raised.

huckdaisy1

Another day, another law suit.  

bdkennedy1002

And $10 million? What a joke. How exactly has he been harmed?

He was harmed by someone else using his vocals. Duh. Just like you would be by doing something great at work and someone else taking the credit for it.

idrey

Funny how I hear most artist love having their song in an apple commercial because it increases record sales and gets them attention, but this guy was harm by an Apple commercial? I'll have to call BS on that. It also seems to me, that is very unlikely for a company that makes commercials for a company as big as Apple to make such an amateur mistake. 

baconstang

602warren said:

damn_its_hot said:

"$10 million" is crap. There is no way in hell his endorsement or that song (or album) would ever make that much. I would like to know how well the song sold since 1971 -- I would be willing to bet it didn't make that much in the 40+ yrs of its release. Apple should have gotten permission though -- probably wouldn't have cost more than $50 and a Colt 45 or MD20/20.

Why would Apple have to ask permission of the artist? Thats the ad agencies job, they're the ones who created the commercial.

M.A.L. ef'd up.  They should have offered a fair deal BEFORE they sold the spot.  Suing Apple for $10M is just what you have to do to get some shmuck to open the mail.

lorin schultz

damn_its_hot said:

[...] probably wouldn't have cost more than $50 and a Colt 45 or MD20/20.

Way, way, WAAAY out of line. Seriously, what's WRONG with you?! What would possess you to think a comment like that is anywhere near acceptable?

You should be really, really ashamed and embarrassed.

franklinjackcon

ericthehalfbee said:

I love how these people don't sue the artist who used the samples, but go after someone down the line who used the artists song. I guess Apple has bigger pockets, so let's sue them instead of Jamie xx. This reminds me of suing Apple because the cell modem violates a patent, instead of suing the company that made the modem.

And $10 million? What a joke. How exactly has he been harmed?

I'm no lawyer but from what I can tell, sampling for a song and sampling in advertising are two different things. Jamie xx needs to get permission from the record company to use the samples to record the song. That has probably happened. But Apple needs permission under Right of Publicity to use someone's voice or likeness in their advertising. This isn't about copyrights but about making Lawson appear to endorse their product. Perhaps Apple can sue Jamie xx afterwards but the one infringing is the advertiser and that's why they're being sued. Apple isn't absolved of responsibility just because they don't manufacture anything or create music for their ads

maestro64

 

 This is not the first time the Jamie xx song caused legal issues. Allegations about misusage also surfaced at the time of the album's release, suggesting the artist hadn't licensed the samples, but it later turned out record label Universal had indeed cleared its use. Jimmy Hayes, another Persuasions member, claimed he was "told about it but forgot."

This is what the case is all about, some guy who probably took too many drugs back in the 70's who brain is fried and can not remember what he was too. The next best reason is the point others pointed out, this guy is just trying to drum up some free media time to get his name out on the market to sell some of his music.

lorin schultz

maestro64 said:

 

 This is not the first time the Jamie xx song caused legal issues. Allegations about misusage also surfaced at the time of the album's release, suggesting the artist hadn't licensed the samples, but it later turned out record label Universal had indeed cleared its use. Jimmy Hayes, another Persuasions member, claimed he was "told about it but forgot."

This is what the case is all about, some guy who probably took too many drugs back in the 70's who brain is fried and can not remember what he was too. The next best reason is the point others pointed out, this guy is just trying to drum up some free media time to get his name out on the market to sell some of his music.

Or he just doesn't want the holder of the world's largest bank account using his stuff without paying him. The law says he's entitled to get paid. The agency only made him an offer six months AFTER the ad started running, and the offered the minimum. If I were him, I too would probably be inclined to push for a better deal. Perhaps, as @baconstang ;suggested, a lawsuit like this is what it takes to force good-faith negotiations.