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Indie Acts Battle Appropriation of Their Images

Baltimore electronic musician Dan Deacon opened his December issue of XLR8R magazine to find he’d been named one of the worst artists of the year in the reader’s poll.

But that wasn’t what prodded him into making an obscene blog post. Rather, it was Deacon discovering his picture on the front of a postcard ad; on the back was a plug for Greyhound buses, promising to take riders to America’s best underground venues to see artists like himself.

As it turned out, no one had ever contacted Deacon or any of the other bands in the ad to seek permission to use their image, let alone compensate them. Greyhound contends that all the copy and photos were provided by XLR8R; XLR8R offered no comment on the record.

Deacon’s case is not an isolated incident. In the Nov. 15 2007 issue of Rolling Stone, readers found a four-page spread titled “Indie Rock Universe.”

Featuring an ad for Camel cigarettes on the flip side, the piece is comprised of cartoonish drawings of a mock “universe” populated by indie rock bands big and small. A number of the bands included in the piece expressed their anger in various online forums about being included in something that could be construed as an ad for a cigarette company.

Two bands, Xiu Xiu and Fucked Up, have since filed a class action lawsuit against the magazine and RJ Reynolds. [note: the attorney generals of eight states have also filed lawsuits against RJR over the Camel/Rolling Stone ads.]

A spokesman for RJR contends that the ad and “Indie Rock Universe” are unrelated and they had no input in the content of the foldout.

Rolling Stone also said that “Indie Rock Universe” was in fact editorial content and not connected to the Camel ads. A source at the magazine pointed to a piece titled “Hip-Hop Universe”, which ran last year in a similar format, and said that bands only had notoriety to gain from being included in the piece.

It should come as news to no one that indie folks are hot marketing property right now, as brands seek to connect with niche audiences.

On many levels, this is a positive development for musicians – with revenue from record sales and touring dropping, there is real money to be made with licensing deals. But while most companies operate within the boundaries of the law, not all advertisers are willing to pay to play. And though some posters on message boards dedicated to the case have said that bands should be grateful for simply being exposed to a wider audience, the fact remains that using someone’s image for a commercial purpose without his or her consent is against the law.

The basis of the lawsuit filed by Xiu Xiu and Fucked Up is California Civil Code 3344, which states, “Any person who knowingly uses another’s name, voice, signature, photograph or likeness, in any manner, on or in products, merchandise or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent… shall be liable for any damages sustained by the person or persons injured as a result thereof.”

There isn’t a uniform federal law that protects the individual’s right of publicity, and laws vary from state to state. In this case, California was chosen as the venue because it is the home base of Xiu Xiu’s Jamie Stewart.

According to entertainment lawyer Quinn Heraty, who works with many indie bands but is not directly working on the case, “There is a presumed damage when someone uses your name or likeness for commercial purposes without your permission. Advertisers who use a band’s image without their permission are not really looking to help the musicians. They’re trying to use the indie vibe and the aura the band gives off to sell their product, not to help the act.”

Heraty says that the reason most indie acts don’t pursue cases against those who use their images without compensating them is a simple question of resources. “A band will see their image and call the company, only to be pawned off on the ad agency,” she says. “It’s a shell game, and it gets discouraging. And let’s face it, lawyers are expensive. Because of this, some brands think they can just railroad indies; they assume they’re broke and dying for exposure.”

In the past, individual indie acts have battled corporations and won; Nike issued a formal apology and destroyed a number of promotional items after Minor Threat and Dischord Records took the company to task for the unauthorized image use. However, the class action suit marks one of the first times bands have come together to fight back. Under the California law, each violation can be valued at $750.

“That’s what makes this all so baffling,” Heraty says. “Greyhound and RJ Reynolds should know better. In the end, they have the most to lose.”

http://tinyurl.com/29aywl - http://adage.com/songsforsoap/post?article_id=122723

http://tinyurl.com/3cvpsa - http://www.thedailyswarm.com/swarm/indie-rock-universe-fucked-and-xiu-xiu-file-class-action-lawsuit-against-camel-and-rolling-stone/

http://tinyurl.com/246lhh - http://www.eyeweekly.com/city/scrollingeye/article/14812

http://tinyurl.com/2×659l - http://idolator.com/tunes/unwelcome-endorsements/greyhounds-attempt-to-get-edgy-backfires-worse-than-one-of-its-rickety-old-buses-330996.php

posted on Tuesday, January 29th, 2008 at 1:03 pm and is filed under music, kill-rock-stars, xiu xiu, fucked up, cortney harding. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

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