Jody Colero paused, dropped the phone, and asked a composer in his Toronto studio to play with the guitar line in the track they were writing: “Can you take anything of any interest out of this please?” He was kidding, but only partly. Colero runs Silent Joe, a company that finds and writes music to make—or break—an advertisement. These clients, like many, were stuck on a sound. It’s an affliction, known as “demo love,” that plagues Colero’s industry. It is pervasive, and potentially dangerous.
“It starts with a piece of music being put on a rough cut” for an ad by the agency, said Ted Rosnick, CEO of the post-production house RMW Music. The clients might watch the edit a dozen times in an afternoon. “The music starts to embed itself in their hearts and minds,” said Duncan Bruce, creative director at the ad agency Publicis. Mood and emotion build, said Chris Tate, partner and composer at Pirate Toronto. “Suddenly,” he said, “nothing else works.”
There is a quick fix: buy the song. That’s what global ad agency DDB attempted when their client, Volkswagen, got hooked on Take Care, by the Baltimore dream pop duo Beach House. “If you could see the emails and were in on the phone calls, you knew what song they were after,” said the band’s manager, Jason Foster. “I know how desperate they were.” But while the band isn’t averse to synching its music with commercials (it licensed a song for a Guinness ad and is in the midst of a few other deals), the Volkswagen spot just wasn’t right. So Beach House declined. And then about a month later, out came the commercial.
“I can sit here and tell you,” said Foster, “I know they ripped us off.” That was in June. The band has spent the intervening months building a case for copyright infringement. (DDB declined to comment.) If they do file suit, they’ll follow many others, including the increasingly litigious Black Keys. In the past year, the Black Keys has sued over three alleged sound-alike commercials. Defendants Pizza Hut and Home Depot settled out of court; a suit against a casino chain, Pinnacle Entertainment, filed earlier this year, is pending.
Yet clients remain undaunted. “The hot ones right now are, ‘Please rip off the Black Keys, Mumford & Sons, Lumineers,’ ” said Colero. Ari Posner, a TV composer, said he often gets asked to write something within the “area code” of a certain song. “There’s a challenge there,” he said. “It’s hard to be something without actually being it.”
Composers find ways to help their clients fall out of love. Pirate Toronto requires client companies and ad agencies to sign a waiver if they’re looking to spoof a specific sound. That causes most to change their tune, said Tate. If RMW Music can’t license a track, Ted Rosnick directs the ad agencies to “take it off the cut right now and stop listening to it.”
It’s an amorphous area. “It’s impossible to say something is original,” said Sandy Wilbur, a musicologist who parses chords from rhythm, tone and lyrics to try and deduce what’s copied. The key is intent, and in the ears of the average listener. Wilbur works with ad agencies and record companies and consulted for Beyoncé when the pop star was sued over copyright. These days, with artists and labels fighting for revenue wherever they can get it, she said business is booming. She works on six or seven cases a year. The big ones can “cost hundreds of thousands of dollars and many, many of them settle.”
That price tag, for most bands, is prohibitive. But, for some companies, so is licensing. Fees can range from $5,000 for an unknown band to $500,000 for a hit, said Rosnick. He tries to pair ads with cheaper tunes or unknown bands from the outset. Colero will save money by licensing a song and not an artist, as he did for a recent Target ad where the electro-pop band Dragonette covered the theme for Mr. Rogers’ Neighborhood. Sometimes money isn’t the issue. “Some artists won’t sell to alcohol because they’re recovering alcoholics,” noted Colero. He once tried to license a Dr. Dre track with 14 different copyright holders. They got 13, but the last, who was in jail, said no. With any luck, the client isn’t looking for a replica.