The suit, brought by lawyer Steven Ames Brown, claims that a holiday ad for Google’s Nexus 5X and 6P smartphones appropriated Love’s "identity and goodwill" by using her rendition of the song "It’s a Marshmallow World" without her permission. It charges Google with "anti-labor advertising practices" and calls 72andSunny "a scab shop" that uses union-protected recordings without permission.
But Brown’s ire may be misdirected. In an odd twist, 72andSunny said it’s not its ad.
"72andSunny had no involvement in the production of this commercial," the agency told Campaign US. Assuming that’s the truth, it’s unclear what agency actually did create the ad.
"They have just raised that question with me, and we are researching. We didn’t sue them by accident," Brown said when reached by phone Wednesday. "I’ve been doing this since 1988. This is the first time anyone has come up and said, ‘I didn’t make the commercial.’"
While the suit requests damages in excess of $75,000, that’s the minimum amount required to get the case into federal court. "You can rest assured that the amount of money we want is substantially higher," Brown said. But money won’t be enough to settle the issue. According to Brown, Love wants Google to sign a contract with her union, the Screen Actors Guild — American Federation of Television and Radio Artists, which guarantees minimum pay for on-air talent. The company could then negotiate a fair rate for the usage of her recording. Since that contract would require Google to use SAG-AFTRA members in all of their ads, it’s an unlikely result.
At this point, Google is keeping quiet about the entire issue and declined to comment.
There has been ongoing strife between agencies that have contracts with SAG-AFTRA and those that don’t. Increased demand for content – particularly digital — from clients has pushed many agencies to look for ways around their contracts, especially as many newer agencies have declined to sign any contracts with the union to begin with (including 72andSunny, as well as Droga5, which was targeted by SAG-AFTRA protesters last week.)
The U.S. District Court for the Northern District of California only issued a summons in the case on Wednesday morning, so Brown can still amend the suit once he determines which agency to target. "We’re not here to pursue somebody that didn’t do anything wrong," he said. Instead, the strong language in the suit, which also referred to 72andSunny as "disreputable," would apply to the as-yet-undetermined agency. "It was non-union whoever [Google] used, so the language would be the same," Brown said.
But if 72andSunny is off the hook this time, Brown is still waiting for them to step even a bit out of line. It’s not always clear what content is covered by the union contracts, so sometimes shops find themselves in violation. (Determining whether that infringement was intentional is usually a matter of perspective.)
"If they didn’t make this commercial, it’s the luck of the draw," Brown said. "They are not a union signatory, and they use pop music in commercials, so sooner or later I’m going to sue them."
The Nexus ad itself was aired more than 1,400 times on national television, according to iSpot.tv, and the video has been viewed on the Google Nexus YouTube channel more than 31 million times — both facts referenced in the suit. "What an advertising agency and an advertiser don’t understand is the injury it does to a performer who suddenly discovers they’ve been turned into a pitchman for a product or a service without their consent. It’s a violation of their piece of mind," Brown said. "It’s like identity theft."
Love certainly isn’t the only musician to take advertisers to court for using songs without permission. In 2013, The Black Keys sued a Louisiana casino for using "Howlin’ for You" in ads. Back in 1993, Tom Waits sued Levi’s for using "Heart Attack and Vine" in a commercial in Europe. Levi’s apologized with a full-page ad in Billboard.
Love sang the song in question, "It’s a Marshmallow World," on the 1963 album "A Christmas Gift for You from Phil Spector," though she’s probably best known for "Christmas (Baby Please Come Home)," which became a holiday tradition for her she sang every year on "The Late Show with David Letterman."
Spector, a legendary music producer and Rock and Roll Hall of Fame inductee, is now serving a prison sentence for second-degree murder.
"Let’s not forget who produced the record," Brown added. "You think he’s paying her?"