First let me set the scene for you… and what a scene it is too. (All names have been withheld to prevent more lawyers fees, as this was a nationally-aired American commercial!). A large biscuit with chocolate chips is on a date with a girl, and starts singing and dancing in a sexy fashion (err… hello!) in front of her while she sits looking adoringly at him from the sofa in his luxury apartment. The track, a very well-known 1979 chart hit, had been cleared for publishing and we were re-recording it. Now, Im well aware of the litigiousness of the USA and that passing off is a bigger deal over the pond than in the UK. So, much to the Advertising Agencys chagrin (but the clients delight), we were vigorous in making sure that while the track and the whole ambience sounded like the original, the singer (a global singer/songwriter superstar) did not!
1. So far, so good everyone was eventually happy. Then came Lesson One: anyone at any time can take a legal pop regardless of any merits of a potential lawsuit. So youve crossed the T’s and dotted the I’s and feel youre whiter than white, but you still need a lawyer and a fat wallet standing by.
2. The superstars lawyers were soon in touch saying that we were passing the track off as the original, thereby damaging their sensitive clients reputation in being associated with a big (rather ugly) chocolate chip biscuit. Their other main point was that the biscuit was deliberately imitating their clients trademark sexy dancing (!) and anyway he didnt need to sing and dance to get a date! Ive heard of dance like a dad but never dance like a biscuit. Lesson Two: greed has no end. However rich and famous a global superstar is, they always want more.
3. Lesson Three (somewhat more obvious): American lawyers and this revered gentleman performer dont have a sense of humour. Amazingly, we also learned at this stage that this soi-disant singer/songwriter had actually been sued himself for plagiarism when the track became a worldwide hit! He had settled out of court with a sub judice settlement giving all publishing royalties to charity. So the only way of him making money from his old monster hit were mechanical royalties and apparently over the years hed made a very tidy sum suing and winning court cases for passing off. Lesson Four: this man is a cheeky bastard.
4. Anyway, we gave a cracking deposition to the advertising agencys New York attorney, which kept him more than happy, and after a two-hour conference call he was convinced that this fallacious case would be thrown out of court with this dear old singer/songwriter footing the bill in what, in current parlance, would be an own goal. Lesson Five: do your homework diligently, be aware creatively and double-check your work and youll always be a winner. The NY lawyer wrote up his opinion for the advertising agency with a final recommendation that should the singer/songwriter not withdraw his case immediately he should be counter-sued for vexatious litigation. Lesson Six: ignore Lesson Five because this world is very, very strange place. The advertising agency settled out of court and paid the singer/songwriter one million dollars because they didnt want their client or the public hearing about this case. WELL, REALLY!