Managing Conflict Outside of the Courts

By PON Staffon / 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.