The odd thing about the Black Keys case is that the duo of Patrick Carney and Dan Auerbach is a prime example of how to find success through TV commercials.  Look to  the ads for the Nissan Xterra  during the 2006 Olympics using their song “Set You  Free.”   And last Spring the NCAA promoted March Madness with a film that was half basketball highlights and half Black Keys concert.  The song was “Gold on the Ceiling.”

Bands can not only gain attention from millions of TV viewers, they also get a nice payday from the ad agency that uses their songs.   But the Keys argued Home Depot was using “Gold on the Ceiling” without paying for the licensing rights.  And that Pizza Hut was using their song “Lonely Boy”  - or at least a reasonable facsimile of it. 

Both “Lonely Boy” and “Gold on the Ceiling” come from the Black Keys El Camino album, which is one of the top 20 highest selling albums of the year.  Pizza Hut and Home Depot,  both owned by parent company Yum Brands,  had denied any copyright infringement.   But a company need not use the actual audio of a band to get into trouble.  In 1988 a federal appeals court in California ruled that Ford was wrong to imitate the voice of Bette Midler. 

 The court wrote “when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs.”   Here was that commercial using what viewers probably thought was Bette Midler.

And four years later the same court ordered Frito-Lay to pay two million dollars to Tom Waits for imitating his voice from, of all songs,  "Step Right Up" which has the line "Don't be fooled by cheap imitations." 

In both the case of Midler and Waits, the two companies had tried to buy the rights to their songs but the artists had refused.  But that practice continues. Volkswagen’s ad agency in Europe approached the indie-rock duo known as Beach House to use their song “Take Care” in a commercial showing a man and his daughter through the years.   It seemed a good fit.  But the band decided not to sell.   So the commercial ran with a different, but similar sounding song. 

Fans of Beach House were angered but the band members wrote on their Facebook page “..anger should not be directed towards VW or us. It was the ad agency that made these moves.”   

Details of the settlement between the Black Keys and Pizza Hut and Home Depot has not yet been released. 

Weird connections

Patrick Carney's uncle Ralph Carney was a longtime horn player in Tom Waits' band.  
Nissan is now running an ad in Europe for its Qashqai SUV by another Akron band.  It uses the 1979 song "Human Fly" by the Cramps.  
No one remembers any TV ad song for the El Camino and that's an El Camino on the Black Keys' album cover.