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Apple, Inc., is being taken to court over its use of Jamie xx’s “I Know There’s Gonna Be (Good Times)” in a televised commercial for the iPhone 6. The lawsuit, filed on Tuesday in Los Angeles Superior Court, may showcase a new legal front in the battle over sampling.
When the song, featured on Jamie xx’s Grammy-nominated album In Colors, was released in 2015, a small controversy arose over the allegation that the U.K. artist hadn’t licensed use of The Persuasions’ 1971 recording, “Good Times.” Jamie xx was never sued. According to a 2015 Billboard article, Universal had cleared use with Persuasions member Jimmy Hayes acknowledging, “I was told about it but forgot.”
It turns out this isn’t the end of the controversy.
Jerome Lawson, the lead singer in the a cappella group, is now suing over the iPhone ad, but quite notably, he is not asserting an infringement of the sound recording. It’s likely he doesn’t actually control rights to “Good Times.” Instead, he’s contending that Apple and its ad firm, Media Arts Lab, have violated his right of publicity under California law.
“Lawson’s voice is prominent and recognizable in the Apple commercial,” states the complaint (read here). “Lawson is informed and believes and on the basis alleged that Plaintiff’s voice was recognized by fans of his who saw the commercial and those 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 Apple’s products.”
The lawsuit also contends that use of the recording in a commercial is a “deliberate violation of the collective bargaining agreements with SAG and AFTRA,” specifically the protocol that requires separate bargaining with singers for use in commercials. According to the complaint, a business affairs official at Media Arts Lab offered Lawson the minimum amount allowed under SAG rules after the advertisement started airing.
Have a listen before reading further:
Lawson’s complaint is similar to a 2016 lawsuit filed against Google by singer Darlene Love over the use of her voice from the song,”It’s a Marshmallow World,” for a Nexus phone advertisement. Last year, Love also sued Scripps for using her singing voice from “Christmas (Baby Please Come Home)” in advertisements for HGTV’s programming. Both cases were dropped without any big rulings. Neither case involved sampling.
Perhaps the big legal issue that arises from these types of cases is whether state-based claims (like improper use of someone’s voice) are preempted by federal copyright law.
In 2006, for example, the 9th Circuit Court of Appeals took a look at a lawsuit that had been filed by recording artist Debra Laws over a sample of her work in “All I Have,” a song recorded by Jennifer Lopez and LL Cool J. Like Lawson, Laws asserted that her voice had been misappropriated under California’s right of publicity statute. On appeal, the judges agreed with Sony Music that the misappropriation claim was within the subject matter of the Copyright Act.
“Although California law recognizes an assertable interest in the publicity associated with one’s voice, we think it is clear that federal copyright law preempts a claim alleging misappropriation of one’s voice when the entirety of the allegedly misappropriated vocal performance is contained within a copyrighted medium,” stated the opinion. “Moreover, the fact that the vocal performance was copyrighted demonstrates that what is put forth here as protectible is not ‘more personal than any work of authorship.’”
Does this doom Lawson’s claim? Well, get ready for more complication.
Before 1972, sound recordings weren’t eligible for federal copyright protection. About two years ago, a California judge interpreted state laws to cover pre-1972 recordings. This possibly means that Lawson’s singing from 1971 wasn’t within the subject matter of the Copyright Act and he has a hope of surviving copyright preemption. Then again, there would be later reissues of The Persuasions’ album, Street Corner Symphony, which included “Good Times.” This could matter because last June, a California judge gave CBS Radio a pass on a claim of misappropriating pre-1972 songs because it merely exploited post-1972 remastered versions. So … which version of “Good Times” did Jamie xx sample?
If there’s no settlement here, and Lawson and his attorney Larry Zerner do manage to hurdle past various defenses, it will be big news on the sampling front. It may essentially mean that older artists have some sort of moral rights to protect their performances from sampling and commercial exploitation. But that’s a long ways off. We’ll keep our ears on this one.
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