12:36pm PT by Eriq Gardner
Darlene Love Sues Google for Using Her Singing Voice in Smartphone Ad
Darlene Love is targeting Google over use of the song, "It's a Marshmallow World," in an advertisement for Nexus phones.
The pop singer, inducted into the Rock & Roll Hall of Fame and hailed as one of the 100 best ever by Rolling Stone, has filed a lawsuit in California federal court. She's certainly not the first artist to claim misappropriation, but how she's asserting it is a tad unusual.
The lawsuit doesn't contend that Google or the ad firm, 72 & Sunny, has violated copyright on the song. Instead, she's claiming a violation of her publicity rights under California law. Specifically, the suit states that the commercial broadcast all over the world has "embodied Love's identity through copying of her voice."
Typically, a claim premised on a state-based statute like misappropriation of the right of publicity would be preempted by federal law, but says her attorney Steven Ames Brown, "This is a pre-1972 recording and under 17 USC § 301(c), there is no preemption of state law until 2067."
This puts Love's legal action somewhere between the lawsuit filed by Flo & Eddie of the Turtles over SiriusXM's use of pre-1972 recordings and the lawsuit by Bette Midler in the 1980s when the Ford Motor Company used a singing "sound alike" for ads of vehicles.
There appears to be no "sound alike" in this instance, however. (See the advertisement in question below.) As such, the question will likely arise to what rights Love retained or gave up when working with producer Phil Spector on "It's a Marshmallow World."
Here, the lawsuit (read in full here) suggests that when Love recorded the song in 1963 for the compilation album A Christmas Gift for You From Phil Spector, the terms of a guild agreement prevailed.
"Love and virtually every successful recording artist records with labels which are signatories to the AFTRA collective bargaining agreement commonly referred to as the 'Phono Code,'" states the complaint. "Defendants knew that Love recorded 'It’s a Marshmallow World' under the protection of the Phono Code. 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."
According to SAG-AFTRA's one sheet about the phono code, if a recording is licensed, artists may be entitled to a separate payment. It doesn't say anything about authorization.
But the lawsuit frames the advertisement as a "despicable" contempt of her rights.
"They turned her into an involuntary pitchman for products of dubious quality," the complaint continues. "They created a commercial that falsely implied to the public that Love had endorsed Google’s products. They broadcast the commercial on television throughout America over 1,400 times and around the world on the Internet over 31,000,000 times, which was likely to result in Love witnessing the appropriation of her identity on national television. 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."
Google had no comment while 72andSunny said it "had no involvement in the production of this commercial."