Singer Dion DiMucci, best known for 60s hits like Runaround Sue and The Wanderer, is taking the parent company of Fallout 4 developer Bethesda to court over the use of one of his songs in a commercial, which he found "repugnant".
The commercial in question is this one, which features DiMucci's The Wanderer playing over the top of cinematic Fallout sequences.
While DiMucci signed a general agreement with Universal for his song to be used in situations like this, he claims in a filing made with a California court earlier this month that the contract also included the clause that the track couldn't be played "without separately bargaining with" DiMucci and gaining his personal approval.
The singer claims this personal approval was never sought, and that the commercial features "repugnant and morally indefensible images" that he would never have agreed to have his song represent.
As a direct and proximate of Defendant's actions, Plaintiff has been damaged. In addition to the loss of the fee which Plaintiff had the right to charge for the use of his performance in commercial advertisements, he lost his right to refuse consent.
Defendant's Commercials were objectionable because they featured repeated homicides in a dark, dystopian landscape, where violence is glorified as sport. The killings and physical violence were not to protect innocent life, but instead were repugnant and morally indefensible images designed to appeal to young consumers.
In The Wanderer, Dion gives life to the story of a sad young man who wanders from town to town, not having found himself or the capacity for an enduring relationship. The song describes isolation during coming of age.
Without Plaintiff's consent, Defendants dubbed The Wanderer into commercials in which the protagonist, a wanderer, roams from one location to the next, armed and hunting for victims to slaughter. Defendant's Commercials have no redeeming value, they simply entice young people to buy a video game by glorifying homicide, making the infliction of harm appear appealing, if not also satisfying.
While he found the commercials as they were made to "have no redeeming value", DiMucci says that had he been involved in negotiations, he would have tried to steer the clip in a different direction.
Had Defendant performed its obligations and bargained with Plaintiff prior to the first use, Plaintiff could have used his right to refuse consent to persuade Defendant to change the scripts so that, for instance, they instead told the story of a post-apocalyptic struggle for survival without craven violence. Alternately, he could have priced into his fee adequate compensation to safeguard himself against the potential loss of goodwill from being associated with the immoral images in Defendant's scripts.
As a result, DiMucci is suing Bethesda's parent company Zenimax for damages, while claiming that because the commercials are still available on YouTube, "their continued presence is an ongoing irreparable injury".
DiMucci is seeking $US1 million in damages from the case, along with legal costs.
We've contacted Bethesda for comment.