Jazz and rock singer Darlene Love recently filed a lawsuit against Google, claiming that the company improperly used her 1963 recording of the song “It’s a Marshmallow World” in an ad for a smartphone. Rather than claiming Google infringed upon her copyrights for the song, Ms. Love alleges that Google violated her common law right of publicity; by using her song, she argues, Google falsely implied that Ms. Love endorsed Google’s products.
Does this claim hold up? Law360 turned to Partner Lisa Callif to help answer this question.
It isn’t usually necessary for advertisers to obtain more than just the proper copyright licenses for the publicity rights of artists whose voices appear in their commercials. As Ms. Callif explains, “There is no obligation to obtain permission from the singer of the song, unless the singer has arranged that with the label or publisher.”
If Ms. Love stipulated in her record label contract that the label could not license songs for advertising without her consent, her argument would theoretically be with her label for violating her contract, rather than with Google. However, California’s common law right of publicity is broad, and in similar cases, courts have ruled in favor of artists such as Tom Waits and Bette Midler. The outcome of Ms. Love’s case remains to be seen.