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Flo and Eddie sue Applebee's

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LOS ANGELES, California (Reuters) -- It turns out restaurateur Applebee's International Inc. and the 1960s pop group the Turtles aren't so happy together after all.


Two of the group's members, Mark Volman and Howard Kaylan, have sued the chain and its advertising agency, FCB Worldwide Inc., over an ad which modified lyrics to their 1967 hit "Happy Together."


In the ad, the words "Imagine me and you, I do/I think about you day and night, it's only right" become "Imagine steak and shrimp, or shrimp and steak/Imagine both of these on just one plate."


Arguing their reputation was compromised, the pair said the lyrics changed "from those of a sweet love song to a crass paean to shrimp and steak combination plates," according to papers filed in Los Angeles federal court Wednesday.


They seek damages and profits from sales drummed up by the steak and shrimp promotion.


Them's some angry Turtles! :)


- Jeff

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Something tells me that someone at Foote Cone and Belding probably knows a thing or 2 about properly clearing rights to the song with a sync license.


Howard Kaylen and Mark Volman (Flo and Eddie) didn't write "Happy Together", so chances are good that they don't own the copywrite on the publishing.


The original record might be "their hit", but the song itself isn't. Hope they aren't paying a lawyer out of pocket because this suit looks like a loser.


I'm not a lawyer, but I play one on TV. :D Actually, I had one experience licensing the Petula Clark hit "Downtown" for a local TV commercial nearly 20 years ago.

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The suit probably has some merit, but it may hinge on two pieces of information I gleaned from another report.


Applebees' ad agency did get permission to use the song. The article is unclear whether they are using the actual recording with lyrics removed. The following is a quote from the Reuters' news article as published by the Houston Chronicle:


An attorney for the plaintiffs, Evan Cohen, said Applebee's contacted the song's publisher for permission to use the song, but did not contact the Turtles, who are the owners of the original master recording.
If they re-recorded a similar arrangement then I doubt the band will win anything. If it is the instrumental tracks from the actual master recording (Doubtful. How could they get the master recording without the owners' permission?) then there is definitely a case to be made.


Of course, this is all speculation. Can't wait to see how it plays out.


Does anyone understand, specifically how groups like the Beatles, etc. were able to keep their songs out of commercials for so long. Are commercial uses other than simply recording your own version of the song prohibited under copyright without permission. I was under the impression that once a song has been recorded and released once, it is fair game so long as you pay royaties for it. I have to assume that only applies to release as a song on an album, for other commercial use.


I guess the simple question is, how do you retain ownership to limit your song's use and is it possible to retain full control over who records and releases it?


I know this has been an issue as Pete Townshend refused use of Won't Get Fooled Again in Fahrenheit 9/11 and Bruce Springsteen refused to allow use of his recordings for the movie, Mask in 1985. They used Bob Seger tunes instead.


Now I understand that we're talking about original recordings in the above instances. But my question is; Could the film-makers in the Mask example have paid the royalties, hired their own musicians and singers and recorded new versions of Springsteens songs for the movie? Would Springsteen have had a say, in that case?

It's easiest to find me on Facebook. Neil Bergman




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Neil, the difference is that Springsteen and Townshend and the Beatles were the writers. The Turtles, since they were not the writers, are in a different boat.


As for "sound-alikes", again it reverts to the writer granting permission to use the song. You could get sound alike singers to pretend to be the Beatles singing, say, "Lucille", if you got permission from the writer, Little Richard.


I distinctly remember a car commercial where the music was a direct cop of a Clapton song from one of his late 80's albums (maybe the song "Pretending"?). They had a similar production sound, chord progression, and creamy guitar soloing, but no singing, so it wasn't really identifiable unless your a music kook. I don't know if there was any permissions or lawsuits over that.

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Originally posted by fantasticsound:

If they re-recorded a similar arrangement then I doubt the band will win anything.

I forgot about this until I read Neil's post. I don't think the Applebee's spot sounds anything like The Turtles, especially since it's a parody, but...


Bette Midler successfully sued Ford in the '80s. For the release of the Taurus, Ford wanted to use Midler's original recording of "Do You Want to Dance". She declined. So the agency recorded a version that sounded exactly like hers with a sound-alike vocal.


"In Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988), cert. denied sub nom Young Rubican, Inc. v. Midler, the Ninth Circuit reversed Fords summary judgment and issued a decision that first "recognized" Californias common law right of publicity. In Midler, a sound-alike vocalist performed Midlers signature song, "Do You Want to Dance," in background music for a Ford television commercial. Although Californias statutory right of publicity, Cal. Civ. Code § 3344, only protects a celebritys actual voice, the Ninth Circuit found the deliberate imitation performed by Midlers former back-up singer was actionable at common law."

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Happy Together

comp. Gary Bonner/words Alan Gordon, 1967

first recorded for Perry Como but not released

June 2nd 1967 at RCA Victor Studio A

New York City

Produced by Andy Wiswell


As far as i remember, Howard Kaplan and Mark Volman changed their names to Phlorescent Leech & Eddie and later to Flo & Eddie, because the use of the Turtles name and their own names was illegal according to an contract and maybee the IRS was investigating on them.


Licencing music of members of a performing right organization is a standard procedure for producers. If all copyright holder agree that you change words or music, then there is no problem. To clear changes in the music and original content can be time consuming and more expensive.


The ASCAP license does not provide the right to record copyrighted music, or change the lyric of a copyrighted work and use it in a commercial jingle or station promotion. These are known as "mechanical" and "synchronization" rights and you should deal directly with the copyright owners for permission to record music or change a song.

-Peace, Love, and Potahhhhto
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Haven't heard this either but in regard to a point raised by a couple of posters, even if the used the Turtles recording, it would be beyond their scope to sue, probably, unless they owned the recording copyright, something few musicians even today negotiate.


I think the Beatles were able to keep their recordings out of commercials because of the fact of their, especially McCartney's, continued influence in the indudtry & with Parlophone/EMI/Capitol. Also, at a certain point when establishing Apple Records, I think they gained control of their recording copyrights, though not retroactively.

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