Yoghurt Super Bowl ad leaves sour taste with John Butler Trio

February 17, 2012 Published by

The Dannon Oikos Greek Yoghurt Ad, which aired last week during the Super Bowl, is currently ranked No. 9 on USA Today’s Super Bowl Admeter:

The John Butler Trio however isn’t so impressed after being alerted to the similarity between the riff in the ad and their popular song ‘Zebra’:

The developments are being played out on Facebook, with JBT’s management posting that they “will be seeking advice as how to address the issue”. Oikos Greek Yoghurt posted in response that they are “working to fully understand and address the situation” and have apologised to JBT’s band members and fans.

So, what’s the issue from a legal perspective? Original musical works automatically gain copyright protection upon creation under the Copyright Act 1968 (Cth). This gives the copyright owner certain exclusive rights as to how the work may be used, including the right to reproduce the musical work and communicate it to the public. If someone else exercises one or more of these rights without the permission of the copyright owner, the copyright owner may have a cause of action for breach of copyright.

It’s no doubt a common occurrence that agencies are required to source a musical track for a client’s TVC. It is important to bear in mind the principles of copyright and copyright infringement in these circumstances, so as to avoid a situation like the above which may result in both legal costs and negative publicity for your client’s brand.

We’ve put together a simple list of tips to consider whenever you have regard to a musical track for your advertising campaigns:

  • If the track isn’t your own original musical creation, the first and best position is to obtain a licence from the copyright owner to use the track in the manner intended.
  • It may be that your musical track is ‘inspired’ by another track which you have not created / do not have a licence to use. In this case, there is usually no issue if the musical tracks occupy the same ‘sound world’ and have the same common features attributable to the genre (e.g. classic rock rhythm or pop instrumentation). Generic stylistic features of a particular music genre are not considered to be original musical works and so do not attract copyright protection.
  • An issue arises however when it is a unique or important part of an original work that is copied without the consent of the copyright owner. The way the Australian Courts approach the issue of copyright infringement in musical works was recently considered in the case of EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47 (the ‘Kookaburra’ case). The test involves two elements:
    1. Whether there is sufficient ‘objective similarity’ between the works; and
    2. Whether the infringing work constitutes a ‘substantial part’ of the original work.

In the Kookaburra case, the Federal Court of Australia found that based on an aural comparison of musical elements (including melody, key, tempo, harmony and structure) and a visual comparison of the notated songs, there was a sufficient degree of objective similarity between Men At Work’s popular song ‘Down Under’ and the folk song ‘Kookaburra sits in the old gum tree’.

As to the ‘substantial part’ test, this is primarily a qualitative test (rather than quantitative). This depends upon the importance of the part to the original work. In the case, the Court held that a substantial part of the ‘Kookaburra’ song had been reproduced in ‘Down Under’, even though the part taken did not constitute a substantial part of ‘Down Under’.

  • It is therefore important that if you have had regard to another musical work, you steer clear from using any original musical features of that work (i.e. create a different and original melody, harmony, vocal line and rhythmic profile). Particularly bear in mind that essential features of a musical track, or elements that have intrinsic value to it, irrespective of their size (this calls to mind the JBT’s ‘Zebra’ guitar riff) should not be reproduced without the permission of the copyright owner.

Judge for yourself how close the Oikos ad comes to JBT’s ‘Zebra’ and let us know your thoughts or any other issues you or your clients face in this area.

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