You've written a song -- a successful one, maybe. Long after it has fallen off the charts, it's picked up and sampled in a new hit. Suddenly, it's showing up in commercials, with your vocals highlighted, but without your permission.
Most lawyers would recommend pursuing a copyright claim, but that's not the path being taken by Jerome Lawson, lead singer of The Persuasions, whose 1971 song "Good Times" was sampled in Jaime xx's "I Know There's Gonna Be (Good Times)" and subsequently used to advertise the iPhone 6. Lawson, who filed suit against Apple on Tuesday, claims the use violates his right of publicity -- a novel, and unusual, approach to the sampling dispute.
From Song to Sample to Ad
There's a bit of backstory to how the Persuasion's song ended up in an iPhone ad. The Persuasions, an influential a cappella group that's been together since 1962, released "Good Times" as part of their "Street Corner Symphony" album. If you didn't hear it then, you may have heard it since. That's because, in 2015, Jaime xx sampled the song for a collaboration with Young Thug and Popcaan, on his Grammy-nominated album "In Colors." (You can listen to the Persuasion's original here and Jaime xx's NSFW song here.)
There was some controversy over the original sampling, after The Persuasions claimed they hadn't approved their song's use. But that issue was never litigated.
Now, their song, via Jaime xx's sampling, is all over Apple's iPhone advertisements, highlighting Lawson's voice almost exclusively.
I Know There's Gonna Be (Novel Legal Issues)
That doesn't please Lawson, who is accusing Apple and the marketing firm Media Arts Lab of violating his right of publicity under California law. That right protects a person against the unauthorized use of their name, likeness, or voice in commercials, and is based both in California's statutory and common law.
Lawson says that, by using his "distinctive and famous voice" without permission, Apple and MAL have violated that right.
"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 complaint states. He's seeking at least $10 million in damages.
Relying on a right of publicity for such a suit is relatively novel, as the Hollywood Reporter notes. Singer Darlene Love has sued Google and Scripps for using her music in advertisements, claiming right of publicity violations, but those suits involved no sampling and were dropped before rulings were issued.
Further, there's a question of whether Lawson's right, based in California law, would be preempted by federal copyright law. One Ninth Circuit opinion would lean towards preemption, THR's Eriq Gardner notes. But there's an even further complication: the federal copyrights didn't cover sound recordings until 1972, a year after the original song was made.
For the sake of us who'd like to see how this mess gets untangled, here's hoping the case isn't just settled.