Pauly Fuemana's widow is chasing compensation from German car giant Audi, claiming it has used one of her husband's hit songs in its latest TV commercial.
Lawyers for Kirstine Fuemana and Universal Music have written to Audi, pointing out what they claim are "noticeable similarities" between the soundtrack for its "Land of Plenty. Land of Quattro" advert and OMC's 1996 hit single Land of Plenty. The song featured on OMC's multi-platinum chart-topping album How Bizarre.
The letter claims the advert's soundtrack could amount to "passing off and/or misleading and deceptive conduct under the Fair Trading Act, not to mention copyright infringement". It asks Audi to make a "sensible offer" to avoid further legal action.
An Audi press release lauded the commercial in July, saying it features its vehicles "going for a hoon in a number of stunning Kiwi locations". It said its agency asked Los Angeles-based Kiwi singer-songwriter Greg Johnson to write a track for the commercial, and the "music evolved via a long-distance collaboration, with the team often throwing ideas back and forth into the wee hours to accommodate Johnson on LA time".
The lawyers' letter for Fuemana and Universal Music says the melody and shape of the lyrics are similar, the vocal delivery resembles Fuemana's, and the concept and lyrical themes are the same, with images in the commercial similar to the OMC video of the song. The commercial aired until mid-August.
Audi has indicated it is comfortable with its position. A spokesperson said it was considering the letter and would respond.
Johnson did not respond to requests for comment.
The issue came to light when Pauly and Kirstine Fuemana's children saw the advert on TV.
"The thing that upset me the most is that the kids were watching TV and saw the ad and they yelled out, 'hey Mum, they're playing Dad's song'," she said. "I rang Pauly's publishing company because they usually run these kinds of things by me and asked them what was going on. They told me it might sound like it but it wasn't Pauly's song."
She was left to raise the couple's six children when Fuemana died in 2010.
Land of Plenty's co-author Alan Jansson said he "felt sick" when he heard the commercial.
"It was hideous because it just sounds so much like Land of Plenty. I've produced commercials so I understand how songs can be played around with in the studio and tweaked but it just sucks."
Universal owns OMC's work, and royalties are paid to Kirstine Fuemana and Jansson.
The legal letter to Audi said the car advert had caused significant public confusion about whether the song had been deliberately referenced or remade, and damaged the owners' ability to licence the song, which they considered a valuable asset.
As a comparison, Tasti paid a six-figure sum to use Fuemana's How Bizarre as the basis of a new ad campaign for its snack bars, currently screening.
One well-known musician, who declined to be named, said the issue affected the entire industry. "I think the problem is an ethical one - not doing the right thing by the composers and the composer's widow."
Audi New Zealand's head of communications, Fiona Woolley, confirmed its lawyers were considering the letter.
"We are unable to offer any comment other than to let you know we will be responding . . . and are comfortable with our position on the matter."
Audi has previously been taken to task over music use in commercials. American singer-songwriter Tom Waits won a landmark case against the car company in Spain in 2006. The Appeal Court in Barcelona ruled in favour of Waits after he accused the company of wrongfully misappropriating his vocal styles in a sound-alike TV commercial.
Two requests to Johnson for comment via his Facebook page were unanswered, although they had been read.
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