Managing Conflict Outside of the Courts

By — on / Dispute Resolution

In May, Alex Scally, one half of the Baltimore musical duo Beach House, was surprised to hear from fans in Britain claiming that a new song by the band was being used in a Volkswagen television ad. Scally hurried to watch the ad online. He and his partner Victoria Legrand had repeatedly rejected lucrative offers from Volkswagen and its ad agency, DDB, for permission to use Beach House’s 2010 song “Take Care” in an ad, reports James C. McKinley, Jr. in the New York Times.

“It was a crazy moment,” Mr. Scally told McKinley of the experience of watching the ad online for the first time. “We didn’t give them the song, and they made a very similar song to replace it. The worst thing is that … a feeling and a sentiment and an energy has been copied and is being used to sell something that we didn’t want to sell.”

Scally told the Times that he and Legrand had had no interest in licensing the song to Volkswagen because the ad’s feel-good story of a father raising his daughter had no relation to the band’s song. “Right off the bat it was a pretty strong no,” Mr. Scally said. Yet the band claims DDB was relentless in its pursuit of “Take Care,” making at least five new offers and even sending a version of the ad with “Take Care” playing in the background. Still, the band refused.

Beach House contends that after it turned down Volkswagen, DDB hired a music-production team, Sniffy Dog, to write and record a song that would sound like the Beach House song. Sniffy Dog refused to respond to the accusation, citing a confidentiality agreement with DDB.

A spokesman for Volkswagen told McKinley that Beach House was just one of several bands that DDB approached when searching for a soundtrack for the ad. The spokeswoman said the company decided to commission its own track after failing to reach an agreement with any of the bands and that the soundtrack was not intended to imitate Beach House’s song.

Beach House reportedly has met with lawyers and musicologists about the possibility of filing a copyright suit in British courts. If Beach House decides to sue Volkswagen for copyright infringement, the case could be difficult to argue. Because musicians cannot copyright an instrumental style or mood, such lawsuits “often hinge on painstaking, note-by-note analysis of the music,” writes McKinley. As an alternative, musicians can argue that a so-called “sound-alike track” confuses the public by suggesting that a musician is endorsing a particular product. In the United States, singers such as Bette Midler and Tom Waits have won challenges to sound-alike ads in state courts on those grounds, according to McKinley.

Such disputes are often resolved through expensive legal battles. But more novel – and less costly – options are  available through creative negotiation. To take one example, if Beach House’s claims are accurate, a sincere, public apology from Volkswagen for any real or perceived wrongdoing could go a long way toward appeasing the band. Researchers have found that apologies can dramatically reduce ill will and parties’ demands for financial compensation. A promise from Volkswagen not to commission sound-alike tracks for future ads might also carry significant weight in a settlement negotiation. To reduce confusion, Beach House might ask Volkswagen to add a tagline crediting the music in the ad to SniffyDog. Through creative negotiating, parties can avoid the stress and expense of facing off in court.

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2 Responses to “Managing Conflict Outside of the Courts”

  • As a former professional musician and booking agent, I can say that the group “Beach House” is trying to manage their business themselves instead of having professional management, or is not listening to their management. This is often the case of many young artists who believe their talent alone is enough to get them by in the music business. The music business is as rough and tough as any other business and perhaps more so than many others, because of insider connections and extremely high upfront promotional costs (investment-backing), being so vital for success. The very best songs have a commercial shelf-life of perhaps 18 months on the world market; (a few weeks after the next annual awards’ show, if the song is mentioned and partially aired), most oftentimes far less. There are some rare exceptions such as Carole King’s Tapestry LP, but these are extremely rare occurrences and should be considered “one offs.” “Beach House” should have allowed their song to be used with their credit appearing on the VW (VAG is the parent)ad. Songs or musical jingles have a significantly longer lifespan in both the social and marketing conscience… how many ads from yesteryear do we associate a particular musical passages or phrase from a song? Remember, we are only talking about 25-30 seconds of background soundtrack here, not the wholesale sell-out of an entire musical group. It’s takes mature and confident partners to be successful in any group-based business and with proper management, they can withstand the test of longevity in a highly competitive environment instead of being cast aside with the lot of “one hit” wonders. From VAG’s perspective, let them (Beach House) take it to court. The alleged controversy will only get more people watching and listening to the ad on social media’s Youtube which is what we are after; publicity… our 30 second jingle (at very little cost) to reach as many potential buyers in the key youth-oriented demographic. This is win/win from any viewpoint for VAG. The only real loser here is the hurt feelings and bank accounts of the group “Beach House,” simply because they said “no.” The controversy will not do anything to enhance their careers and may to the contrary, demonstrate that they are “difficult to work with”… a virtual business “death sentence” for any aspiring musician or musical group. By the way, Eric Clapton had no problem allowing the opening intro bars of his iconic rock ballad “Layla” being used in the Opel Das Auto commercial throughout mainland Europe; introduced last Fall and still airing. It’s simply a matter of business perspective.

  • Travis G.

    Managing Conflict Outside of the Courts:
    I have a question about the above mentioned article and the last paragraph that states, “To take one example, if Beach House’s claims are accurate, a sincere, public apology from Volkswagen for any real or perceived wrongdoing could go a long way toward appeasing the band. Researchers have found that apologies can dramatically reduce ill will and parties’ demands for financial compensation”.
    Can you sincerely apologize without admitting guilt? What if Volkswagen apologizes and then the Beach house sues them using their own apology as proof?
    I sincerely want to know the answer because I am mediating a case that may be resolved this way.


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