Famed pop singer Darlene Love has filed a lawsuit against Google, claiming the company used her 1963 song "It's a Marshmallow World" without her permission in ads for its Nexus smartphone. The details of the lawsuit, however, are fairly unique. According to a report from Billboard, the lawsuit claims Google "embodied Love's identity through copying of her voice." This means that instead of suing for federal copyright violations, Love is claiming a violation of her publicity rights based on California state law.
Normally a claim like this would be overtaken by federal law, but that only applies to songs recorded after 1972. According to the Billboard report, since this was recorded nearly a decade before that, her attorney claims "there is no preemption of state law until 2067." As such, the recording is bound by a collective bargaining agreement called a "Phono Code," affiliated with the Screen Actor's Guild and American Federation of Television and Radio Artists (SAG-AFTRA), which represented many singers during that time period. The lawsuit contends that "an honest company, doing business in good faith, would not attempt to deprive Love of the benefits of the union protection and would have engaged a SAG-AFTRA affiliated advertising agency so that the performer (and the background singers) would receive at minimum, the union-mandated benefits."
Love's lawsuit claims that Google's actions resulted in her being turned "into an involuntary pitchman for products of dubious quality. They created a commercial that falsely implied to the public that Love had endorsed Google’s products." It even goes so far as to say "Google’s conduct was so loathsome that it intentionally hired a disreputable non-union affiliated advertising company and the two of them deprived Love of her union protections, all to enrich themselves at her expense." Essentially, she's claiming that her distinct voice and song were used without her knowledge to imply that she was personally endorsing their smartphones. She is seeking in excess of $75,000 in damages.
It's not totally clear if her case holds water, as there is simply no identical lawsuit to compare it to. Regardless, it's sure to be another interesting development in the legal quagmire of music copyright law. You can watch Google's offending Nexus ad below, and read a full version of the lawsuit here