Although Google was careful to clear the rights to Darlene Love's song in their recent Nexus ads, Love has nonetheless filed a lawsuit on the grounds that Google failed to obtain her permission and give her a opportunity to refuse them.
Guest Post by Tim Cushing on Techdirt
Darlene Love, the voice on the Phil Spector-produced hit "He's A Rebel," is suing Google and its ad producer, 72 & Sunny, for violating her publicity rights by using a song she recorded in one of its ads without her permission.
The lawsuit seems to revolve around California's much-maligned "right of publicity" law, which allows plaintiffs to sue entities for using pretty much anything about them, rather than just for bog standard copyright infringement.
That's going to be key because it seems clear Google cleared the rights to use a song of hers in its Nexus ads. That would just leave the extra "permission" Love feels she's been screwed out of: the "right" to block Google from using a legally-licensed track.
A voice does not end up in a commercial advertisement by accident. Rather, a number of people are involved in the creation of commercials. The voice of a famous performer, singing a famous song is selected for the express purpose of trading on the performer’s goodwill. Defendants consciously and deliberately selected Love’s vocal performance of It’s a Marshmallow World for their commercials.
However, Defendants refused to take any steps to obtain Love’s consent and had no reason to believe she had or would consent to such use. Instead, Defendants took deliberate measures to evade contacting her or obtaining her permission.
Love's voice was used, as it was part of the licensed track. Her goodwill remained where it always was -- loaded like a spring trap, apparently. She accuses Google of deliberately using a non-union ad producer to ensure her union-granted "rights" (whatever they are…) were routed around.
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.
So… medical coverage? Prevailing wages? This part isn't explicitly spelled out, but Eriq Gardner points out that union members may be eligible for separate payments. But Love's lawsuit never claims Google refused to pay her. She only alleges it did not seek her permission to use her "goodwill."
Defendants actions were despicable and in conscious disregard of Love’s rights. They turned her into an involuntary pitchman for products of dubious quality. They created a commercial that falsely implied to the public that Love had endorsed Google’s products.
That's a stretch. It's obvious Google chose the song for its lyrics (advertising a new phone containing its "Marshmallow" version of the Android operating system), rather than for Darlene Love's $75,000-worth of "goodwill."
Love gets her shots in at the nationally-acclaimed ad agency as well, claiming it colluded with Google to screw her out of something the lawsuit fails to specifically name. (But apparently worth $75,000+)
Google engages in anti-labor advertising practices and in an effort to harm Love, hired Sunny, a scab shop that utilizes recordings of artists created under the protection of collective bargaining agreements, without themselves becoming signatories and complying with the union-mandated obligations for the reuse of phonograph records in commercials.
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.
As you can see, some parts of the lawsuit read like someone's emotional blog post and -- I can't state this enough -- there are no accusations in the filing that Love did not receive compensation for the licensed use of her work. The agreement she cites as the basis for her beef with Google and its "scab" ad agency says nothing about seeking an artist's permission. It only notes they may be entitled to an additional, separate royalty. Nowhere in the suit does Love claim she did not receive the royalties she was entitled to. Instead, she's trying to use a bad law to extract $75,000 from Google simply because if they'd asked if she would like to be in its ad, she would have said no.
Can she win this? Anything's possible. The unauthorized use of someone's likeness -- which includes their voice -- can be considered a violation of the right of publicity under the local law. There's a good reason why she's brought this lawsuit in California, rather than New York, where she lives and Google has an office. In California, her suit isn't pre-empted by federal law, which means she can use the friendlier local law to pursue damages.
But she'll have to make a stronger case that Google intentionally traded her goodwill for thousands of dollars -- rather than simply licensed a song with "marshmallow" in the lyrics. It really seems like her beef should be with her union for not ensuring her the chance to reject the use, rather than Google, which apparently paid the licensing fees and handled everything correctly on its end of the deal.