This week on Under The Influence - just in time for the Grammys - we look at the rocky history of popular music in advertising. For decades now, the advertising industry has had a curious habit of choosing music for commercials, but ignoring the message of the song.

We'll look at a song from Britain's most anti-establishment band that was used to sell Jaguars, how an optimistic coal company chose a song that was really about getting deeper in debt, and a song about sexually abusive slave-owners that was used for a funny, animated soft drink commercial (!)

We'll also analyze some of the historic lawsuits between Madison Avenue and musicians, including how Nancy Sinatra sued Goodyear Tires for borrowing her "boots.".

Hope you'll join us.

One of the performers at the famous Woodstock Music Festival was a 22-year old singer-songwriter named Melanie Safka.

Her fans knew her simply as Melanie.

Melanie was one of the youngest performers at the festival, and possibly one of the least known. All day she waited to go on the stage, but was constantly bumped by more established bands.

Then, at 11pm on August 15th, the Incredible String Band refused to go on in the rain. Melanie was told to go on instead.

Even though she was nervous, she sang her heart out in the pouring rain.


Source: YouTube

The crowd was so taken with her courage and performance, they lit thousands of candles in the rain.

That profound moment had a dramatic effect on Melanie, and she would go on to write about it in the song, Lay Down (Candles in the Rain) - backed by the powerful Edwin Hawkins Singers:

Melanie was one of the most popular singers of the 1970s, and another song she would go on to write was titled, Look What They've Done To My Song, Ma:

It's a fitting title that sometimes sums up the tumultuous relationship between the advertising industry and the music industry.

It's been an on-again off-again relationship for many years.

Occasionally, both benefit greatly. Other times, it's all-out warfare. Using popular song in advertisements stirs up powerful feelings in music writers, artists and the buying public.

Many times, advertisers will say that a song in a commercial can make cash registers sing.

And at other times, artists say, look what they've done to my song, ma...

Licensing pop music in commercials is a very delicate and expensive proposition.

Rarely is a song owned by one entity, and to find a song owned by the original songwriter alone is the rarest situation of all. And that complicated ownership has led to many corporate wars.

One of the most high profile examples of the pitfalls of licensing happened with this commercial:

As I've mentioned before, when Nike used The Beatles' song Revolution in a 1987 TV commercial, it ignited several reactions:

First: It wowed the advertising industry, and elevated Nike up to almost mythic proportions, because only a brand as important as Nike could have broken ground by licensing a Beatle classic.

Second: It got the attention of the buying public. It was instant water-cooler talk.

Third: It got attention from the press all around the world.

Fourth: It sparked outrage among music lovers, and especially the baby boomer fans of the Beatles, who had grown up with them.

And lastly, it caused outrage among the remaining Beatles themselves. Paul McCartney, George Harrison and Ringo Starr had never wanted their music used for advertising.

Yet, here was one of their greatest anthems being used to sell running shoes.

Nike had paid $500,000 for the rights to the song.

But they didn't pay the Beatles. They paid the owners of the song - which happened to be Capitol-EMI and Michael Jackson.

The Beatles sued nonetheless, and the case was settled out of court. But it was a milestone in the use of popular songs in advertising, because if The Beatles' songs were fair game, everything was.

In 1993, singer Tom Waits sued Levis Strauss for using his song Heart Attack & Vine in a TV commercial in Europe. In the ad, his song was covered by Screamin' Jay Hawkins:

Tom Waits has a firm policy that he won't endorse products, but in this case, he didn't actually own the rights to his song.

But he sued anyway, and eventually won the lawsuit.

It's an interesting case, because Waits couldn't sue for copyright infringement, and he couldn't sue for voice impersonation, as Screamin' Jay Hawkins was an established performer with his own sound:

Instead, Waits sued for "false endorsement." He maintained that listeners thought it was him singing, and therefore assumed he endorsed the jeans.

A few years earlier, in 1985, Bette Midler sued Ford for the same reason.

Ford had asked Midler to sing her song, Do You Want To Dance, in a TV commercial. She declined. Then Ford hired one of her background singers to record the song ala Bette Midler.

But when Midler later heard it, she sued for violating her right to publicity.

It was another interesting case. Midler argued that because Ford couldn't buy her voice, they just took it.

Ford argued they had procured all the rights to the song, had not used Midler's name or image in their commercials, so they had done nothing wrong. Midler argued that the song was associated with her, and the singer was impersonating her.

But the Court found no legal principle that prevented the imitation of Midler's voice.

In the case notes, it was stated that, "mere imitation of a recorded performance would not constitute infringement even where one performer deliberately sets out to simulate another's performance as exactly as possible."

In other words, a voice could not be copyrighted.

As a result, the Trial Court agreed with Ford, and ruled in their favour.

But Midler appealed.

This time, the courts sided with her. They concluded that Midler was well-known, her voice was distinctive and she had acquired a proprietary interest in her voice. Furthermore, the courts said, "...to impersonate her is to pirate her identity. And the voice is as distinctive and personal as a face."

Bette Midler had sued for $10 million dollars. She was awarded $400,000. But Madison Avenue was put on permanent notice as a result.

Midler was successful where Nancy Sinatra wasn't 20 years earlier.

Goodyear Tires had bought the rights to These Boots Are Made For Walking and used it in a TV commercial:

Sinatra argued that even though she didn't own the rights to the song, it had nonetheless acquired a 'secondary meaning" which was strongly associated with her.

She argued the commercial had even stolen the look from her music performances of that song:

But the courts didn't agree.

It would take Bette Midler's boots to set the precedent.

In all of those cases, the artists didn't own the rights to their songs. That one fact always makes licensing cases tricky.

In 2001, Wrangler used Creedence Clearwater Revival's song Fortunate Son for a commercial to advertise its Five Star Jeans.

But we only get to hear the first two lines of the CCR song.

The song was written to be a powerful anti-Vietnam statement. Fogerty was saying that it's hard to be patriotic when the sons of the rich don't get drafted, but the sons of the common man are sent away to fight the war.

The purpose of the song was to question patriotism. The purpose of the commercial was to celebrate it.

Fogerty no longer owned the rights to his song, which were lost to label Fantasy Records many years before, and had fought the record company for decades trying to get them back.

When Fantasy Records granted the rights to Wrangler, they did not consult Fogerty, because they didn't have to - legally. But when he saw the commercial, he was appalled.

Fogerty felt the use of his song in a TV commercial trivialized its meaning. Most of all, Fogerty worried what the reaction of the Vietnam vets would be, because so many had told him how meaningful that song had been to them.

But, the advertising industry has a bad habit of choosing music based on just a few lines and a melody, ignoring the basic message of the song.

The often-cited Iggy Pop tune, Lust for Life, has long been used in Royal Caribbean's advertising:

The subject matter of Lust For Life is really about heroin abuse.

But the tempo is upbeat and the one-line refrain "Lust for Life" is strategically right for a family-oriented cruise line. But the intent of the song couldn't be more strategically wrong.

Yet according to Bethany Klein's excellent book, As Heard on TV, Iggy Pop, who controls the rights to the song, has no problem with it. The track wasn't getting any radio airplay, and he said he actually enjoys the Royal Caribbean usage, and is just happy it's out there in any form for someone to hear.

Jaguar cars chose to use London Calling by the Clash for one of their commercials:

There couldn't be a more anti-establishment band than the Clash. And a Jag is one of the great symbols of the upper class.

But "London Calling" as a one-line encapsulation of the British Jag "beckoning" customers fit the sales event strategy - as a line - not as a song.

GE Energy ran a TV ad for coal using the 1955 hit song, Sixteen Tons:

Besides the fact the commercial shows shirtless male models and hot babes mining coal, the song talks about being "another day older and deeper in debt" and "owing your soul to the company store" while the commercial chirps about the bright future of coal.

Again, a song chosen for it's surface meaning, instead of its message of indentured servitude.

Pepsi once used the Rolling Stone's hit Brown Sugar in a commercial, showing a mosquito sucking up a drop of Pepsi on a counter. When the mosquito suddenly feels the sugar hit, it starts to sing:

The song, Brown Sugar, is actually about cotton field slave owners sexually abusing their female slaves.

But the lyrics in the song have always been notoriously hard to decipher.

As one blogger wryly stated, "The Rolling Stone's best business strategy is the fact people can't really understand Mick Jagger."

And in a case of a self-fulfilling prophecy, Melanie - the singer who wrote, Look What They've Done To My Song, Ma - and who no longer owns the rights to the track - got a firsthand look at what an advertiser did to her song.

While the marriage of popular music and advertising was consummated many years ago, it is a relationship that sleeps in separate beds.

Marketing's greatest audience, baby boomers, are effectively reached through the nostalgia of the songs from their youth.

Yet, the ideals those songs embodied are held dear by that same group, as well as by many of the artists.

Some artists balk when their songs are used in ads, while others are happy for the revenue in their twilight years. Whereas, many of today's artists are completely fine with their songs being used in commercials. And many seek out the opportunities.

Some artists control the rights to their songs, but many, especially from the first two decades of rock, don't.

It all comes down to respect.

When advertisers license a song, but disregard the song's intent, it disrespects the song and the songwriters.

And may just alienate the audience.

And it has to be said that the resulting ad doesn't only risk damage to the brand, it risks damage to the entire ad industry...

...when you're under the influence.