(Legal) Career Killers: Violent Femmes and Wendy’s.

by Unfrozen Caveman Law Writer

Advertisers love using popular music in commercials in order to generate a positive reaction or forge strong bonds with potential consumers.

When done well, a song can become an effective spokesperson for a product. Think Bob Seger’s “Like a Rock” and Chevrolet. Or The Rolling Stones’ “Start Me Up” and Microsoft Windows 95. Or for a sad, but equally effective example, Sarah McLachlan’s “Angel” and the ASPCA.

In some cases, a good ad campaign can re-invigorate an artist’s career and re-ignite interest in their music. For instance Volkswagen’s 1999 ad featuring “Mr. Roboto” served as a springboard for Styx’s comeback. Meanwhile, Sting’s decision to license “Desert Rose” for Jaguar gave him one of his biggest late-career hits and buoyed his 1999 album, Brand New Day. A few years later, an innovative HP commercial exposed a new generation to “Picture Book,” a fairly obscure Kinks album track and B-side that has, since, become of their best-known songs.

Sometimes, it can even give artists much-needed exposure. For instance, Moby’s 1999 album, Play, had largely been ignored until it was aggressively licensed for commercials, TV and film. The move allowed Play to become a multi-platinum hit and served as a template for subsequent artists like The Black Keys, Vampire Weekend and Imagine Dragons to follow.

Of course, it can also lead to accusations of selling out. Some artists, like Neil Young, Tom Petty and The Beastie Boys (until recently) have adamantly refused to license out their music, while others, like The Beatles, got upset when their songs were used in ads without their blessing.

When it came to the Violent Femmes, it was a 2007 Wendy’s ad that led to a bitter lawsuit between band members and a subsequent breakup.

Violent Femmes have always been more of a cult band than anything else. Formed in 1980, the band originally consisted of lead singer/guitarist/songwriter Gordon Gano, bassist/guitarist Brian Ritchie and drummer Victor DeLorenzo. Boasting a unique sound that consisted of a mixture of folk, punk and rock music, along with some angsty, often explicit lyrics and minimalist instrumentation and production, the band became very popular with adolescent teens and developed a strong, loyal following.

I’ll be honest, I’ve never really cared for them. Their minimalist approach might be unique, but to me, it makes their songs all sound the same. That’s not necessarily a bad thing— after all, I love AC/DC, and all of their songs famously sound the same— except I’ve always found Gano’s vocals to be whiny and hard to listen to. Additionally, whenever I hear their music, I think of that scene in Reality Bites where Ethan Hawke’s annoying, pretentious character sings “Add It Up.” I hate that movie with a passion (although I’ll admit the soundtrack was quite good).

But, I’m not going to to deny that the band had appeal. Heck, most of my high school loved them and quite a few people I went to college with did too. I’m sure it was like that everywhere in the U.S. during the early-to-mid 90s. They were perfect for young, moody teenagers who wanted something edgy to listen to but weren’t into grunge, rap or heavy metal.

Despite that, the band wasn’t necessarily about having hit singles or albums. Their best-selling album remains their 1983 self-titled debut, which peaked at #171 on the Billboard 200 eventually managed to go platinum in the U.S. That album remains their most well-known, and boasts several of their most popular songs, including “Add It Up,” “Gone Daddy Gone,” “Kiss Off” and, of course, the one most people know, “Blister in the Sun.”

Ironically enough, “Blister in the Sun” wasn’t released as a single at the time and only became well-known through sheer will and persistence. “The record company, in their genius, decided they wouldn’t put ‘Blister in the Sun’ out as a single because it didn’t have a bass drum,” Ritchie said in a 2020 interview with Rolling Stone. “Through a long process of word-of-mouth, playing the gigs, other people doing covers of it, radio stations going rogue and playing it anyway even though the record company didn’t want them to, it became a standard before it was a hit.”

In a lot of ways, the song’s rise to prominence paralleled the band’s path and seemingly confirmed its status as a cult act. Like Phish, Fugazi, Pavement and other cult acts of that era, Violent Femmes got ahead thanks to its rabid fan base and not because of corporate promotion, record industry politics or MTV stardom — and certainly not by “selling out.”

As such, it was more than a bit jarring to hear “Blister in the Sun” in a 2007 Wendy’s commercial. The song was no stranger to being licensed out, having been used in an episode of My So-Called Life, and in the film Gross Pointe Blank, among others. However, those projects made sense. My So-Called Life featured a bunch of angsty high schoolers who were probably Violent Femmes fans, while Gross Pointe Blank was scored by punk pioneer Joe Strummer of The Clash.

But using “Blister in the Sun” to sell burgers, spicy chicken sandwiches, baked potatoes, chili and other things from Wendy’s menu? That doesn’t seem to make much sense— unless the line about being “high as a kite” refers to pot and Wendy’s is a good option for when the munchies set in?

Ritchie certainly didn’t see the connection and went public with his dissatisfaction. He pointed the finger of blame at Gano, who was the sole credited songwriter of “Blister in the Sun,” and even took some personal shots at his bandmate, making it clear he was resentful of more than just the commercial.

For the fans who rightfully are complaining about the Wendy’s burger advertisement featuring “Blister in the Sun,” Gordon Gano is the publisher of the song and Warners is the record company. When they agree to use it there’s nothing the rest of the band can do about it, because we don’t own the song or the recording. That’s showbiz. Therefore when you see dubious or in this case disgusting uses of our music you can thank the greed, insensitivity and poor taste of Gordon Gano, it is his karma that he lost his songwriting ability many years ago, probably due to his own lack of self-respect as his willingness to prostitute our songs demonstrates. Neither Gordon (vegetarian) nor me (gourmet) eat garbage like Wendy’s burgers. I can’t endorse them because I disagree with corporate food on culinary, political, health, economic and environmental grounds. However I see my life’s work trivialized at the hands of my business partner over and over again, although I have raised my objections numerous times. As disgusted as you are I am more so.

Brian Ritchie, 2007 interview

Ritchie added in an interview with On Milwaukee: “It’s a common misconception that ‘we’ sold out and ‘we’ are doing idiotic things when it’s really Gordon exclusively. The sad thing is he makes almost all the money on these things but ‘we’ share the blame and humiliation equally. Which sucks.”

As such, when Ritchie sued Gano in Manhattan federal district court in August 2007, the lawsuit was more about correcting the “he makes almost all the money” than it was about the commercial.

While Ritchie did note in his complaint that the commercial has had “deleterious effects” and “damaged the goodwill” of the band by “disrupting the band’s existing fanbase,” and that “consumers now associate the trademark ‘Blister in the Sun’ with Wendy’s and its fast food products,” the main thrust of the suit was that he had made creative contributions to the band’s songs and was entitled to songwriting credits and half ownership of their back catalog.

“‘Blister in the Sun’ is the band’s signature song and a mainstay of the band’s ever-expanding music catalog,” he said in his complaint. “Both die-hard fans and general audiences alike recognize BITS and, thus, the band when they hear Ritchie’s distinctive voice: the prominent bass line written and performed by Ritchie that grouds BITS’s first measures and verses.”

In other words, the lawsuit boiled down to the age old question of who deserved credit for writing the songs. These sorts of disputes have ripped apart a number of bands and it’s easy to see why. Not only do you have one person making a lot more money than the others, but that person inevitably gets seen as the “genius” behind the band, relegating the others to glorified sidemen.

It also gives that person power to make deals like the one Gano did with Wendy’s. To Ritchie, not only did that fail to take his creative contributions into account, but it violated his intellectual property rights as the sole owner of the Violent Femmes trademark (Ritchie pointed out numerous times that he founded the band and was the one who let Gano in).

Gano, for his part, countered that he had an equal right to the trademark due to their longtime musical and professional partnership and that both he and Ritchie were publicly associated with the band. As for the royalties, he pointed out that Ritchie had signed agreements giving him a small percentage of Gano’s publishing “on all Violent Femmes songs he did not write in consideration for his services as an ‘arranger.'”

This is where things got very nasty. Ritchie accused Gano of coercing him into signing those agreements by, among other things, no-showing or cancelling shows during the band’s 2001 tour — a tour they needed to do in order to pay off some longstanding debts. Gano, obviously, disagreed and claimed both parties entered into that agreement out of their own free will and were ably represented by experienced lawyers.

The record is equally clear that, from the outset of their relationship, Ritchie was bitter and resentful of the purported sacrifice he made by agreeing that the band would only perform songs written by Gano, and acquiescing to Gano’s claim of full ownership of music compositions he had written and their attendant publishing income. Indeed, the record shows that Ritchie had a beef with Gano every year they were together, considered Gano, among other things, a “tyrant,” “sociopath,” “usurper,” and “cheat” that had ripped Ritchie off from the beginning of their relationship and that the two men couldn’t stand each other.

Gordon Gano, motion for summary judgment, January 2010

(Bonus points for using the word ‘beef’ considering the role Wendy’s played in all of this. The only thing better would have been if Gano’s lawyer had said: “Our client has asked Ritchie, repeatedly, ‘where’s the beef?’ Instead, Ritchie has demonstrated that his allegations lack merit and are as light on evidence as Wendy’s 99-cent menu is on your wallet.”)

Ultimately, the parties agreed to a settlement in 2010 and dismissed their competing suits against each other, seemingly putting the whole ordeal behind them.

But a month after the cases were dismissed, Gano filed a motion to have Ritchie cover Gano’s attorneys fees and costs. While this is allowed under U.S. copyright and trademark law, it probably didn’t help their relationship very much. Ritchie opposed the motion, but the judge agreed with Gano and awarded him $256,966, a figure which was upheld on appeal.

So, needless to say, the band broke up during the pendency of the lawsuit. To add insult to injury, Gano licensed out “Blister in the Sun” again, this time to HP in 2012.

But the lure of reunion money causes most bands to put their differences aside and get back together, and Violent Femmes were no different. In 2013, they played Coachella for what Gano says was an incredible and unprecedented amount of money that “multiplied anything that we ever got for playing anywhere in our entire career.” They decided to stick together and have released two more albums, We Can Do Anything (2016) and Hotel Last Resort (2019). While they admit that they don’t have much of a friendship anymore, the two still seem to enjoy playing together. I guess it really is show business and not show friendship.

In any event, I did struggle with this one because, while the lawsuit undoubtedly broke up the band, it’s hard to say that it killed their careers. After all, they were never that popular with the general, mainstream public, so it’s not like the suit made that much of a commercial impact on them. It may have caused some of their fans to become disillusioned — between the Wendy’s ad, as well as the sight of both men fighting tooth and nail over whatever money the band took in, and their nakedly commercial reason for reuniting, it certainly put a dent in their reputation and made them no different from lots of other bands.

Then again, since their reunion, no Violent Femmes song has been licensed out for commercials, so I guess monetary considerations only go so far. It’s too bad, I was hoping they’d license “Add It Up” to Wendy’s next. “Why can’t I get, Biggie Fries? Why can’t I get, a Biggie Coke? Other places’ burgers, are such a joke…”

1 comment

Andrew Barton July 24, 2023 - 1:05 am

The Canadian band Bran Van 3000 saw a re-release of their song Drinking in L.A hit the Top 5 of the UK chart in 1999 thanks to being used in a commercial for Rolling Rock beer.

Previously the song had missed the UK Top 30 on release a year earlier.

Young at Heart by Scottish band The Bluebells is another example. Originally reaching No.8 in the UK on original release in 1984, it hit No.1 9 years layer when Volkswagen used the song for a commercial.

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