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We Asked a Copyright Expert Whether Hugo Boss Ripped Off The xx

As the Hugo Boss ad is removed from YouTube due to copyright claims, we ask a music copyright expert whether or not they have ripped off The xx.

This week a Hugo Boss commercial (actually a few months old) started circulating online. The ad was just your normal handsome white person being smug while living an impossibly expensive lifestyle. No biggie there. But the ad’s soundtrack caused controversy when people pointed out its similarities to The xx’s “Intro”.

"Intro" isn’t exactly a rare choice for a commercial, and it's been used for some sort of teary-eyed, big reveal montage in every quasi-emotional reality show that has aired since 2009. But judging by tweets from Young Turks, The xx’s label, it seems like they weren’t exactly consulted on this.

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Tuesday afternoon, the original Hugo Boss commercial disappeared from YouTub, replaced by the dreaded notice that the video is under copyright claim from the UMPI (Universal Music Publishing International Ltd)—although you can still hear it here. So, what exactly were Hugo Boss thinking? We put that question and more to Chris Cooke, a man who has been writing about music copyright since the late 90s on cases like Napster, Kazaa and Pirate Bay. Cooke co-founded CMU and has been a consultant for Sony, Orange, the Virgin Group, and many more.

What have you made of this debacle between The xx and Hugo Boss?
It’s interesting isn’t it? The advert has been online for a few months now. It’s interesting that none of us seemed to notice it, and presumably Young Turks only noticed it recently, which then motivated the tweet last week. It is very, very similar. There have been a few of these stories in recent years. Often, there is a vague similarity; but when I played this one to our team they were like “whoa!” The key is slightly different, and some of the notes are different, but it is SO like The xx’s track.

In your opinion, have Hugo Boss legally done something wrong?
It is a very gray area of copyright law, which we would only know the answer to if it went to court. It is a matter of inspiration versus infringement. If, as a brand, you want to use a track in an advert, you need to get permission from all of the copyright owners. In a recording of a song with lyrics, there are three copyright owners: the copyright of the recording, the copyright of the words, and the copyright of the music itself. Which are often all owned by different people. So you need to do three different deals to get that track. That is time-consuming, expensive, and any one of those people can turn around and say no. So, if you can’t get permission or it is too expensive, what can you do? Well, there are agencies out there who will commission ‘sound-alikes.’ They will go to a composer and say they want something that sounds just like something else.

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What happens when things like this go to court?
Two things. Firstly, you need to prove that the person who supposedly ripped you off has ever heard your song. Secondly, a musicologist or academic will come in and make scientific statements about how similar they are. Ultimately it is for the judge to decide on the day whether that constitutes copyright infringement and whether damages are due. Generally, with the advert cases, the brands nearly always settle out of court. Tom Waits famously won against a car company a few years ago, but we never got to hear the actual result because they settled out of court. In those cases, you can assume someone has been given a big fat check.

Can you see that happening with this case?
It wouldn’t be great for Hugo Boss to be seen in a battle with The xx, who are signed to a friendly, independent label. All we have seen is Young Turks' tweet, which suggests it wasn’t endorsed in any way. If it got to court, it would be really interesting. Most of these cases normally happen in America, so it would be interesting to see one in the UK.

Is hiring someone to replicate a track quite a done thing in the sync world?
It does happen a lot. There was the Beach House case with Volkswagen. Beach House said they were clearly ripped off, and Volkswagen said they didn’t copy them but used them as an influence for the song that was composed. In the Beach House case, we discovered through statements that there had been specific conversations between Beach House and Volkswagen prior to the incident. What we don’t know with this new case is: Were there conversations between The xx’s people and Hugo Boss’s people at some point a year ago, that didn’t reach anything? Because if there was then that would give you a much better grounds for alleging. We can’t know for certain what conversations were had. The brand might say it is just coincidence. Or that they told the composer that The xx were a band they liked, and they got this back.

Of all the cases you’ve written about, is this one of the most blatant?
Other than The xx track taking a little longer to get going, this is one of those that sounds incredibly similar. Normally, you listen to these cases, and you hear very subtle similarities. In terms of sound-a-like cases, this is one of the most blatant I have ever seen. It would be such a huge coincidence if they chose to claim that they weren’t aware of the original.

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