Apple sued over sample in synced Jamie XX track
By Chris Cooke | Published on Thursday 26 January 2017
So, here’s a complicated bit of litigation. If I’m being honest, writing this story gave me a headache. It’ll be interesting to know what effect reading it has.
OK, so Jerome Lawson, previously frontman of American a cappella group The Persuasions, has sued Apple over its use of Jamie XX’s ‘I Know There’s Gonna Be (Good Times)’ in a TV ad for the iPhone 6.
The Jamie XX track samples the Persuasions record ‘Good Times’. On its release in 2015, there was some chatter to the effect that the band was saying the sample had been used without permission, but it then transpired that it had in fact been cleared by Universal Music. Billboard reported at the time that Jimmy Hayes, a former bandmate of Lawson who is still in the group, admitted that “I was told about it but forgot”.
Lawson isn’t suing Apple on copyright grounds though, very possibly because he doesn’t own the copyright in the track. Rather he is citing his publicity rights under Californian law, the argument being that the ‘Good Times’ samples that appeared in the ad were recognisable as his voice, which implies he was endorsing the iPhone.
Whether or not a sync implies endorsement of a product by an artist is a not uncommon debate in the music community, though that chatter doesn’t usually centre on legalities.
Californian law does recognise a publicity right in an individual’s voice, though arguably legal precedent in the state says that when that voice is contained within a recording protected by copyright, the copyright owner does not infringe a performer’s publicity right by licensing out the work.
Though past cases of this type have seemingly centred on post-1972 recordings, and let’s not forget US-wide federal copyright law does not apply to tracks released before that date. You know, like 1971 Persuasions record ‘Good Times’. So the question is: would that principle also apply to recordings protected by state-level rather than federal copyright law? As a very esteemed and acclaimed lawyer once said to me, “fuck knows”.
Says Lawson’s lawsuit, filed in the LA courts this week and spotted by The Hollywood Reporter: “Lawson’s voice is prominent and recognisable in the Apple commercial. Lawson is informed and believes and on the basis alleged that plaintiff’s voice was recognised 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”.
If you’re not convinced by that, Lawson’s litigation then throws in something else, that the Apple ad is also a “deliberate violation of the collective bargaining agreements with SAG and AFTRA” (that’s the Screen Actors Guild and American Federation Of Television And Radio Artists) that requires separate bargaining with singers for use in commercials. The litigation claims Apple’s ad agency Media Arts Lab offered Lawson the minimum fee provided by that SAG/AFTRA agreement once the iPhone ads was airing.
This doesn’t feel like a dispute that’s actually going to get to court, but if it did, it could result in some complicated discussions around the status and rules of sampling and sync, the clash of publicity rights and copyright, and of state and federal law. I’ll stock up on Nurofen just in case.