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Apple is being sued over a sample in a Jamie xx song in an iPhone commercial

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Apple is being sued over a 2015 iPhone 6 commercial featuring the Jamie xx song “I Know There’s Gonna Be (Good Times),” The Hollywood Reporter reports. The suit was filed yesterday in Los Angeles by Jerome Lawson, lead singer of The Persuasions, whose song “Good Times” is sampled in the Jamie xx track. However, Lawson is not claiming copyright infringement, because Universal has already cleared the sample; instead, he says the use of his voice in the commercial violates his “right of publicity,” according to THR.

The lawsuit maintains that because Lawson’s voice is “prominent and recognizable” in the commercial, it deceives fans into “falsely believing that Lawson endorsed Apple and the iPhone and / or that Lawson consented to the use of his voice to advertise Apple’s products.”

California’s Right of Publicity Law protects a person’s name, voice, likeness, photograph, and signature from use “for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods or services, without such person's prior consent.”

The lawsuit also claims that the use of “Good Times” in the Apple commercial was a breach of agreements with the Screen Actors Guild (SAG) and American Federation of Television and Radio Artists (AFTRA), according to THR. The suit claims that six months after the commercial began airing, Lawson was contacted by Apple’s ad agency, Media Arts Lab. According to Lawson, a business affairs person for Media Arts Lab admitted a mistake was made by not obtaining his permission to use the song. Lawson says he was then offered the “minimum” compensation required under SAG rules which state that any use of a song in a commercial must include “separate bargaining” with singers.

As The Hollywood Reporter notes, the ruling in this case could have a big effect on sampling and copyright in music. In order for Lawson to win, a judge would have to determine that state law (like the Right of Privacy Law) overrides federal copyright law in this case. But, according to experts, that seems improbable.

“It seems to me highly likely that the copyright law in this particular case would preempt any state law claim,” Brad Newberg, intellectual property lawyer at McGuire Woods, told The Verge. “If you were going to allow a case like that, you would be opening up a huge Pandora’s Box for any time that anyone played music, licensed music, or frankly... did anything with a creative work that they had the right to use. You would never be able to license something for a commercial again without clearing even the backup singer and the session trombone player that was used.”

Newberg points to the 2003 trial Dastar Corporation v. Twentieth Century Fox Film Corporation, which concerned the rights to a WWII television series. In 1948, Fox obtained the rights to a TV series based on a book called Crusade in Europe. In 1975, the book’s publisher renewed its copyright, but Fox didn’t renew its copyright on the TV series until the late ‘80s, allowing it to fall into public domain in 1977. After Dastar repackaged and sold the series in 1995, Fox sued on the grounds that Dastar had violated federal trademark law.

The case went all the way to the Supreme Court, which ruled in favor of Dastar, saying that the series’ public domain status eclipsed any possible trademark violations. “What the Supreme Court has said when it grappled with a somewhat similar issue in the Dastar case, is essentially, you can’t dress up a copyright claim as some sort of trademark or right of publicity claim,” Newberg said.

THR also notes a 2006 ruling that sided with Sony when the company was sued by musician Debra Laws over the 2002 Jennifer Lopez / LL Cool J track “All I Have.” Laws claimed that the song, which sampled Laws’ track “Very Special,” was a violation of her right to publicity. The judge ruled that federal law preempted her claim.

There’s one more issue to consider: that the Copyright Act provides protections for sound recordings released after February 1972, while The Persuasions’ “Good Times” was released in 1971, meaning that the track might be outside the purview of the federal law. But Newberg says precedent would suggest the issue of copyright would still be at stake.

“All the various cases, dealing with this, are still copyright cases,” he said. “You’re still dealing with a copyrighted work, and therefore you have to look into the realm of copyright.”

The lawsuit is still in the early stages. A judge has yet to agree to hear the case.