Is the Black Keys' lawsuit against the Martin Agency a bum rap?

For the second time in as many weeks, The Martin Agency made headlines in the Richmond Times Dispatch — and not in a way they wanted to.

This time, it was because Nashville indie band Black Keys is suing Martin, their client Pizza Hut, the Interpublic Group of Companies (the New York holding company that owns Martin) and Virginia jingle house 30th Century Masters for allegedly “significant” copyright infringement of their song “Gold on the Ceiling” in a Pizza Hut Cheesy Bites television commercial.


After its release last year, the song “topped the Billboard alternative music chart” and the album is was part of sold over 830,000 copies, according to an Associated Press story.

That sounds pretty significant.

The Black Keys are claiming the commercial used “significant portions” of their song in “blatant and purposeful infringement of the copyright.” Their lawsuit also claims that they sent “written notices that the ad misused” their music.

That sounds pretty significant, too. Until you look further.

Insignificant damages?

But while the tort may sound significant, the compensation for all the alleged damages doesn’t.

“The cases [against the Pizza Hut commercial and another one, from another agency, for Home Depot] seek unspecified damages of more than $75,000 apiece and an order preventing the continued use of the songs in the commercials,” the AP reports.


That won’t even cover the cost of taking it to the Los Angeles federal court. There are everyday auto-collision and personal injury cases which claim damages more significant than that.

For that size claim, many Richmond ambulance chasers may not even give you the time of day.

So is the compensation understated, or are the damages significantly overstated?

Sigmund Spaeth, call your office

Band spokeswoman Mary Moyer claimed in a statement that “[t]he experts confirmed that this was copyright infringement.” Which experts, or how expert they are, she didn’t say.

Sigmund Spaeth, the definitive musicologist famed on 1940s network radio as the Tune Detective, died in 1965, so he’s no longer around to testify. In his absence, good lawyers can find paid expert witnesses who can, in their honest expert opinions, testify to anything.

You be the judge

Both the official “Gold on the Ceiling” video and the Pizza Hut commercial are on YouTube. Listen and compare for yourself.

I did. The commercial’s audio quality was almost nonexistent, and I’m no Sigmund Spaeth, but what I heard — and didn’t hear — may match what you do.

I heard a rhythm line — not clearly enough to see how closely it resembled the song’s, but clearly enough to know I wasn’t hearing anything significantly unique in either.

What I didn’t hear in the commercial was the song’s melody line, either vocally or instrumentally.

And isn’t that what makes most musical pieces significantly different from each other?