Though it is one of three defendants in a court case alleging music copyright infringement, bicoastal tomandandy contends that none of its work was used for the spot in question: Michelob’s "Pillow Talk," out of Chicago-based ad agency The Leap Partnership.
Jim Hannon, COO of tomandandy, told SHOOT, "There is no tomandandy music in the commercial." He noted that tomandandy wrote a number of tracks for Leap related to the project, but that they were not part of the finished spot.
Michelob parent company Anheuser-Busch (A-B), Leap and tomandandy were sued by The Crystal Juke Box, the Los Angeles-based owner of the copyright for the song "Natural High," which was first recorded by the group Bloodstone in ’72. The Crystal Juke Box alleges that Leap and A-B used Bloodstone’s original recording of the song in "Pillow Talk," which depicts an African-American couple whose post-coital bliss is shattered when the man calls the woman "Michelob." The ad, which broke in spring ’99, was directed by Tom DeCerchio, now at Los Angeles-based Morton Jankel Zander.
On Dec. 20, ’99, A-B and Leap made a motion to dismiss all of the claims, related attorney Larry Iser of Los Angeles-based firm Greenberg, Glusker, Fields, Claman and Machtinger, who is representing The Crystal Juke Box. At that hearing, according to Iser, the judge rejected the motion to dismiss the case, which is now entering the discovery phase. The judge also ruled that only the song’s copyright owner, The Crystal Juke Box-and not its fellow plaintiffs, Wixen Music Publishing and Bloodstone-had the right to sue for copyright infringement.
The Crystal Juke Box, Wixen and Bloodstone initially filed suit in U.S. District Court, Central District of California, in Oct. ’99. Iser said that the complaint alleges that Leap and A-B didn’t obtain permission to license the recording. The first two claims in the suit are copyright infringement; one for the sound recording, the other for the musical composition itself.
The plaintiffs are also suing for violation of right of publicity of the individual members of the band, and for unfair competition. Iser explained that the Bloodstone members have performed "Natural High" since the early ’70s in concert, where they preach an anti-alcohol and anti-drug use message.
"In the middle of the song," said Iser, "they have a little rap where they talk about how you shouldn’t use drugs or alcohol, and you should get high naturally. So for Anheuser-Busch to take this famous anti-alcohol song and not even ask for a license-but to put it into a Michelob commercial-is just a horrible thing to do. The unfair competition [claim relates to] the association of the band and the song with alcohol."
A-B and Leap are represented by attorney Robert Welsh of Los Angeles-based Mitchell, Silverberg and Knupp. Welsh declined to comment in detail about the case. He only said that "our client [A-B and Leap] will be filing an answer in the matter." As SHOOT went to press, he estimated that this "counterclaim" would be filed in court sometime this week (the week of 1/10).
Leap has prior involvement in music litigation. In ’95, The Spin Doctors charged the agency and its former client, Miller Brewing, with unauthorized use of the band’s song "Two Princes" in a Miller Lite Ice Spot "Guy Dancing While Checking Out" (SHOOT, 10/20/95, p. 1). In May ’97, a jury ruled that the spot’s sound-alike music track-composed by Manhattan Beach, Calif.-based Trivers/Myers Music-was substantially similar to "Two Princes."
The case against Trivers/ Myers was dismissed before the trial. Ultimately, Leap and Miller shared joint liability and had to pay a confidential settlement rumored in some circles to be as much as $11 million (SHOOT, 6/6/97, p. 7).
Iser said that he cited the Spin Doctors case as part of his client’s unfair competition claim. "We have alleged a pattern and practice by Leap of utilizing famous musical compositions for their commercials," said Iser.
Iser related that tomandandy was named a plaintiff because "they, in fact, participated in the preparation of the commercial," although he couldn’t confirm what contribution the music house made. Iser said tomandandy’s involvement will be clarified as the parties enter the discovery phase. SHOOT reached one of tomandandy’s lawyers, Ken Block of New York-based Brown, Raysman, Millstein, Felder & Steiner, who declined comment.
