'Morally Indefensible' Fallout 4 Commercial Leads To Lawsuit

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.


Comments

    Sounds to me his beef is with Universal for allegedly ignoring his conditions for licensing his music rather than Bethesda?

      Yeah, that's what I was thinking. Why is he suing Bethesda? They're not the ones who broke his contract.

      Unless Bethesda actually never got permission to use the song from Universal, but that seems extremely unlikely.

        I guess he's suing Bethesda because of their disappointing E3 conference, can't think of any other reason.

          Suing them for animal abuse when they keep beating the dead horse that is Skyrim.

      Because he doesn't want to bite the hand that feeds him, instead he goes after the third party who would not know if the clause as they are an easier target. If he sued Universal, they'd just tell him to fuck off and break his contract completely so he gets nothing at all.

      If the court accepts his argument, then both Universal and Bethesda are in the wrong: Universal for fraudulently handing out licenses for his song, and Bethesda for infringing his copyright (since if their license is invalid, they had no right to use the song).

      One obvious benefit of going after Bethesda is that this is where the harm was done, and they might try to recover costs by suing Universal: a suit that would also help prove facts if DiMucci were to go on and sue them too.

      Unless Universal told him that they'd informed Bethesda of the condition, in which case he'd be right to pursue them rather than Universal. Probably better to wait for more details on a story like this than to wildly speculate.

    Heh, this Singer guy is living in a different world. It's like he's never seen a video game before.

      Or maybe he has and he just sees a cynical attempt to get some extra money.

    I guess I should return my iTunes purchase of Wanderer then, right? Because of that commercial I bought it as I haven't heard it for YEARS and recalled how much I liked it.

      That's what I was thinking. I would swear the song would have got a boost from being shown in the commercial.

    Fairly sure this is why the Beastie Boys didn't want their songs being used for advertising.
    As far as I'm concerned- as soon as you decide to monetise a song for advertising, you can't expect the original context of the song to be carried onwards.
    Advertising isn't your own music video- they're selling a product, not your product.

    I think the indefensible part is them using pre-rendered footage and making the game look great, instead of like it actually turned out to be...

      yes, this.
      I honestly thought when they showed the 'in game' footage on the release day we would be getting that quality.

      One can dream, but its miles on what was delivered

      I never remember the advertising for Fallout 4 using remarkably up-scaled footage. Hell, I even remember the reveal trailer displaying various characters in all their "Bethesda animation" quality.

      And if you are referring to the ad linked on this site, It was always advertised as a live-action trailer.

    The dude sounds like a cry baby

      You sound like someone who doesn't make a living out of the rights inherent to his creative output. Even if you dislike his reasoning, a binding contract was breached and he literally suffered financial damage in the form of unpaid monies.

      See how you'd like it if you were denied a month's salary and were called a crybaby when you rightfully seek compensation.

    The article clearly says that to use the song they had to separately bargain with DiMucci as well as Universal, which it sounds like Bethesda didn't do. If they were informed of that, why shouldn't DiMucci go after Bethesda?

    It's not like Bethesda/Zenimax are legal angels themselves.

      Yes, the article does state that to use the song Bethesda had to bargain with Dion, as well as Universal. But the same article only a sentence earlier states that this was a clause on the general agreement contract Universal had signed with Dion for rights to his song. That is a failing of Universal not holding up their contract deal, not Bethesda who were most likely not aware of such a clause existing on a contract they wouldn't need to view.

      EDIT: Aaaaaannnd now I read the actual court document. This is from the Commercials Contract that Zenimax signed.
      “[Defendant] agrees that [ ] no part of any phonograph
      record, tape or other audio recording or of any other
      production of [Plaintiff] made under the jurisdiction of AFTRA
      [ ] shall be used in commercials without separately bargaining
      with [Plaintiff] and reaching an agreement regarding such use
      prior to any utilization of such [ ] sound track under this
      Contract. [ ]
      Yeah, they're boned.
      Link to court document: http://www.courthousenews.com/wp-content/uploads/2017/07/Dion.pdf

      Last edited 10/07/17 12:25 pm

        The argument is spurious though. Zenimax didn't sign the SAG-AFTRA commercials contract, they signed an agreement with UMG which said:

        “[Defendant] hereby represents, warrants and agrees that [Plaintiff] whose performances are embodied on [The Wanderer] [ ] will receive not less than the compensation and other economic benefits having a substantially equivalent economic cost to the [Defendant] as those which would be payable to [Plaintiff] if the [Defendant] were a signatory to the
        collective bargaining agreement applicable in the relevant medium for such use.

        The suit indicates that the SAG-AFTRA commercials contract is the collective bargaining agreement mentioned in this section (which is solid) but then claims that section 28 of that agreement details economic benefits. In legal terms, 'economic benefits' has a particular meaning, of benefits that can be quantified monetarily. Further, the UMG contract Zenimax signed didn't oblige Zenimax to uphold the SAG-AFTRA commercials contract, but to ensure "compensation and other economic benefits having a substantially equivalent economic cost" (emphasis mine) were paid.

        Those terms (at least as quoted in the lawsuit) don't oblige Zenimax to fulfill any terms of the commercials contract other than to effectively provide equivalent financial compensation to what the commercials contract requests.

        I'm interested to see what the court ruling on this is, but a cursory IANAL reading seems to suggest Zenimax upheld its contract with UMG as written, and it was UMG's contract that wasn't written to properly include the SAG-AFTRA commercials contract terms. That still means Zenimax is liable (copyright infringement is a strict liability tort) but it would mean they could sue UMG in response for misrepresenting the rights acquired.

          My gosh... are you a lawyer? Because that was impressive :3

            Not a lawyer, but I've done a fair bit of research on legal issues as they relate to video gaming. My interpretation of the above may well be wrong, we'll have to wait and see.

              Your interpretation looks pretty solid to me. Ofc, it all depends on the court it goes into. That said, if this does go down badly for Zenimax, I would say UMC can expect a figure 10 times higher aimed at them in the next court filing for damage to the Zenimax brand, in addition to costs, etc. Will get pretty interesting.

              Dammit, why do Zenimax always have the interesting court cases...

              Edit: As a side note, he may have difficulty sustaining his case regarding the issues with the trailer. Based on the one provided above, the only shooting involved is at super-mutants, an inherently aggressive foe which strongly implies self-defense. He, on the other hand, claims "the protagonist, a wanderer, roams from one location to the next, armed and hunting for victims to slaughter" in the clip. None of that is actually implied in the above clip. A judge and/or jury may see it differently, and ofc none of this actually impacts the infringement, however it may have some impact on damages awarded.

              Last edited 10/07/17 11:02 pm

          Ok, my legal-ese was definitely lacking when I originally looked into this. Thanks for pointing out those things.

          As we speak, zenimax will be quantifying the cost of what could be an extended defence against even a spurious lawsuit, with the accompanying (using this articles comments as a yardstick) negative publicity versus shutting Dion up with a million simoleans.

          And, given zenimaxs recent court history, the odds of their lawyers being lousy enough to lose even this case.

          Sometimes it's safer to settle, but I wonder if Dion getting a payday on zenimax's dime might flush other rights holders out to do the same.

            A settlement seems likely, but I'd still like to see it tested in court just to see if the ruling aligned with how I read things.

    The ad shown above contained no violence.

    Err...

    0:03 - 0:07 > A thriving American neighbourhood gets nuked. There's 8 houses and 5 moving vehicles. Which could mean a death count between 5 and 70 in that one scene.

    0:16 - 0:17 > White privileged male causes serious acts of violence against FEV-mutated minority.

      Don't forget the extended version of this trailer includes said male nonchalantly aiming his rifle at a radroach and firing whilst walking past. The radroach wasn't even attacking him!

    The guy's been in the music industry for over half a century and THIS is what he defines as 'repugnant'?

    This video is far too rude to feature my song about fucking chicks and leaving before they can get their claws into my unemployed ass.

    The only violence in the ad is against super mutants (well apart from the nuke). I bet Dion DiMucci is some sort of leftist pinko who thinks cannibalistic super mutants can integrate with society.

    Dion DiMucci. Soft on super mutants.

    This is pure idiocy

      It's not. Regardless of whether or not you agree with his personal views on the content of the trailer, it appears he has a solid case if he was never contacted for approval before his music was used, as was stipulated in his contract.

        Indeed. The question is who screwed up, UMG or Zenimax. Though as the end user, Zenimax is strictly liable even if they believed they'd done everything right. If it ends up being UMG at fault for poor contract wording, Zenimax would sue them in response.

          Let's be real... Even if UMG is ultimately to blame, people are still going to crucify Zenimax because they're 'teh evil'.

        I meant the 'old man yells at cloud' moral outrage about a completely tame trailer.
        Paints the guys like an idiot.

        The litigation is a seperate thing. Whoever his record label/management are - they are to blame if they didn't look after licensing and financial matters.
        As much as zenimax are awful, it's not really their problem.

    He needs to visit Barbra Streisand so they can flick through photo albums of her house together.

    The song is about a guy who goes around slipping his dick into all the girls spreading STDs throughout the country, I'd say the song itself is distasteful! :)

      except that in the song you are meant to look down on and pity someone for being like that

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