The Song That Makes The Nutter Butters And Hot Dogs Dance Has A Sad, Sad Beat Behind It

Jun 19th, 2007 // 24 Comments

hot_dog_ad-799625.jpg
If you’ve seen the recent ad for the hot dog chain Wienerschnitzel‘s Nutter Butter Freeze (screencap above), you’ve heard a snippet of the song “Sweet” by the indiepop band Tullycraft. What you may not know, though, is that the band itself isn’t getting any money from having its song in the ad–and in fact, the members didn’t know about the ad’s soundtrack music at all until recently:

It was brought to my attention a little over a week ago that the Tullycraft song “Sweet” was being used in a television commercial for Wienerschnitzel. I found this very shocking because I knew nothing about these ads.

We hadn’t been contacted by Wienerschnitzel or any agency representing them. After a little research, it was discovered that the record label that had re-issued our first album “Old Traditions, New Standards” had licensed the song without asking our permission or even contacting us about it. Ultimately, I guess this is my fault. When HARRIET RECORDS went under and we were approached about re-issuing “Old Traditions, New Standards,” I thought… “sure!” I didn’t anticipate being told: “Read your contract. We don’t have to ask your permission to license your songs.” I guess I thought that the indie world was different somehow. I assumed that we didn’t practice business like the ugly major labels. More than anything, I hate being disappointed by people who I thought were my friends.

Old Traditions was a 1996 album that was reissued by the California label Darla a few years ago; this is the first instance we’ve heard of a band having its licensing abilities completely pulled out from under them by having their material reissued, although we’re pretty sure it isn’t the last. Of course, back when the contract was signed, the epidemic of indie bands serving as jinglesmiths wasn’t as widespread as it isn’t now, which is why we’re guessing that’s why this little wrinkle wasn’t covered in the negotiations (disclaimer: we are not, and probably never will be, lawyers). But that doesn’t excuse the label’s behavior at all in our eyes–in fact it makes it seem worse, dancing peanut-butter cookies or no. Would a phone call have been too much to ask for?

Tullycraft in a television commercial? [tullycraft news]

  1. Ned Raggett

    Darla acting in a shady fashion? QUEL SURPRISE. (I’m seriously surprised Tullycraft hadn’t at least heard some of the rumors.)

  2. din

    fuck darla. that is seriously uncool behavior on their part. I know it’s naive of me, but I really miss the days when indie labels didn’t have contracts that were indistinguishable from the ones the majors use.

  3. mike a

    This is really a question for DeadlyTango, but I am curious whether Darla owns the master rights, and whether that makes a difference.

  4. joshservo

    Cut to Of Montreal: “Uh…That totally happened to us too. Just like they said. Because we would never…Oh, you didn’t seriously think we would do an Outback…Hey! Check it out! Our lead singer totally whipped it out! Oh, man, indie rock is CRAZY!”

  5. capn_guthrie

    I think the real question this commercial begs is this: who the hell eats or has ever eaten at a weinerschnitzel?

  6. Dan Gibson

    While licensing someone’s music without their consent is certainly shady, the Tullycraft folks using the “I shouldn’t have to read the contract” excuse really minimizes their status as victims.

  7. Ned Raggett

    I don’t think I have but my grandparents had a franchise in Lake Tahoe once. I don’t know if they ever visited it either!

  8. 30f

    Wait, so the fact that the label guy is wearing a vintage t-shirt instead of a bespoke suit and can talk about (insert obscure Pixies reference here), doesn’t mean he is completely honest? I spend all that time building up my “Indie Cred +7″ and it doesn’t protect me from reality?!? Rip-off!!!

  9. Butch Huskey

    much like their hotdogs, you dont want to know how the Nutter Butter ice cream is made …

  10. joshservo

    @capn_guthrie: I’ve only seen Weinerschnitzels on the west coast. I assume their use of Tullycraft in the ad means they’re going to attempt to crack the lucrative Silverlake market.

  11. mreasy

    Darla probably has master rights, but a synch license requires consent (and payment) to both the master owner and the publishing owner. It is low-down and dirty for a label to grab publishing rights, but it’s not unprecedented…it is certainly silly that the band didn’t have a lawyer look at the contract (especially since it was from DARLA for chrissakes) though, I suppose.

  12. ClipClop

    While it’s not uncommon for labels to option their entire catalogs for various licensing opportunities, unless Tullycraft was truly stupid and signed a horrible deal (they didn’t sign away their publishing, did they?) they should at least be getting paid on the backend for publishing and songwriting. Commercials like this normally pay out a TON of money though. Whatever costs Darla may still be trying to recoup from rereleasing Tullycraft records should be pretty easily taken care of.

    If the contract is really bad they could be getting screwed out of a ton of money but, c’mon guys, who reads contracts anyway?

  13. queensissy

    mreasy, the label probably claimed publishing rights but I can’t even find that they bothered to register the song at BMI or ASCAP. If they weren’t so busy writing their “poor me” blog, Tullycraft probably could have just registered the song under their own pub. co. name. They only had, what, seven years to take care of that?

  14. Audif Jackson Winters III

    @capn_guthrie: It’s very big in suburban L.A. and SoCal generally. Although you never actually see one in the City of LA itself.

    I’ve never eaten at one, although I have vague recollections of watching a late 90s episode of “Diary” featuring Korn, when the bassist made a run for some chili fries. Enough to put me off it forever.

  15. catdirt

    there is a wienerschitnzel by the court house in el cajon, california. i ate there once. it was… disquieting.

  16. mike a

    Magic Marker is Tullycraft’s current label, and a reputable one at that. All the songs listed in BMI are from the Disenchanted Hearts Unite album. I don’t see an ASCAP or BMI credit for “Sweet” or any of their several earlier CDs at all. I can never get over how many songwriters w/records never bother to hook up with one of the performing rights societies.

    I’ve always wondered if the name “Tullycraft” had anything to do with the popular Seattle chain Tully’s Coffee.

  17. mike a

    I know the perfect substitute song – a little ditty by the Descendants, anyone? (They’d have to loop it a couple of times to fill out the entire 30 seconds.)

  18. RepentTokyo

    am i supposed to feel sorry for a band that signed a contract they didn’t read? next time they will be more cautious about who they get into bed with. i know it’s a shocking realisation, but * gasp * people are in business to MAKE MONEY!

  19. Ned Raggett

    Dammit I was just thinking of that earlier too.

    “May I take your order?”

  20. Deadly Tango

    @mike a: Thanks for the shoutout… I think others have covered the waterfront by now, but I’ll chime in quickly.

    Depending on the contract signed with Darla, Tullycraft might have signed away any number of rights — publishing, sound recording, and synchs on one or both. I find it hard to believe that Darla would be able to obtain complete publishing rights, which are completely separate from the master recordings, but anything is possible in the four corners of a contract.

    At the same time, Darla can’t legitimately license something to which it has no rights… so Tullycraft can certainly enforce whatever rights it still holds against Darla and the ad agency and the hot-dog gurus — regardless of the likely cross-indemnifications, name them all to expand the settlement pool since they’re all somehow responsible and will want to make it go away.

    This would be (yet another) fun law school exam scenario — possible claims for copyright infringement, breach of contract, and defamation of character (assuming that being associated with Wienerschnitzel harms the reputation and public standing of the band). Plus, in Europe (and for certain visual works in the US), Tullycraft would still have a “droit du moral” that basically says “even though I no longer control copyright, I can stop you from misrepresenting the work I authored.” It’s a defamation-like claim for interfering with the artistic integrity of the original work through edits and alterations and juxtapositions.

    Finally, the failure to register with ASCAP/BMI/SESAC doesn’t strip Tullycraft of its rights in the music — it just makes it harder for the band to receive royalties from broadcasting and webcasting uses of their music. Besides, as noted earlier, the synch rights are separate from the rights administered by ASCAP et al. — NMPA / Harry Fox Agency handles mechanicals and synch licenses for the compositions.

  21. Faster

    Tullycraft – come now, you can’t possibly be so naive!? Know your industry! There have been so many big cases similar to what happened to you by much more established and well known artists. You can’t just be in it as an artist – you need to learn the business too.

  22. Delicate

    a quick search at ascap reveals that other tullycraft/sean tollefson songs are published by the following:
    MAGIC MARKER MUSIC
    % MARK REBACK
    1435 S. BUNDY DRIVE
    # 1
    LOS ANGELES , CA, 90025
    Tel. (323) 445-726

    i have no idea who this is, but probably another lesson in “never give up your publishing.”

  23. mackro

    I was about to say. The guys in Tullycraft, who are still mostly in Seattle afaik, didn’t hear about this right away because Wienerschnitzel is a chain that has plastered California, Arizona, and — well — that’s it.

    Der W is notorious for being that fast food hot dog place that gives you the runs. It’s the Cali version of Taco John’s.. except substitute “Weiner” for “Mexican”. Voila.

    Oh yeah, Darla.. haha. Good for customers, bad for bads.

  24. mackro

    bad for bands, too.

Leave A Comment