During the Super Bowl, I remember seeing the now controversial Air Force ad liberally borrowing the riff from The White Stripes’ “Fell in Love with a Girl” and noticing it sounded different from the recording I had memorized from White Blood Cells years ago. Now the band released a statement saying that the ad was unauthorized and they weren’t contacted for permission and threatened to sue the Air Force. The band’s statement said in part “we believe our song was re-recorded and used without the permission of The White Stripes, our publisher, label and management.”

The Air Force has since pulled the ad (after it ran several times during the Super Bowl), but is it illegal?

I’m not a lawyer by any means but this example brought to mind a 2008 story in Spin about re-recording songs. The examples the story gave were Kid Rock, who refuses to have his music sold digitally, had his songs re-recorded by a group of anonymous musicians. It said:

In the United States, copyright law makes recording and selling any cover song pretty simple. If you want to pimp your own version of “All Summer Long” — itself already a pastiche of “Werewolves of London” and “Sweet Home Alabama” — you don’t need permission from Kid Rock, his publishing company, his record label, or anyone else, for that matter. You just have to notify the song’s writers and publishers and make sure you pay them royalties on each sale of your recording.

But the rise of digital retailers like iTunes, Amazon, and eMusic has changed the landscape in the last few years. Where previously, soundalike recordings struggled to find shelf space in music stores, now they’re as easily accessible as most any other recording. Furthermore, when buying music can be accomplished with a mouse click and most tracks cost less than a dollar, customers are more likely to take a flyer on a curiosity or — as some critics of soundalikes would contend — be fooled into buying something they never wanted. None of this can be particularly pleasing to labels already facing a rather dire business environment.

In the end, the Air Force blinked and it looks like they’ve pulled the ad. It looks, though, that they didn’t have to and The White Stripes could have been SOL. More troubling, though, is that licensing songs is one of the few areas where there is money for artists to actually be paid and if agencies are re-recording bits instead of licensing them appropriately, it’s a disturbing trend, to say the least. Good for The White Stripes for prevailing here, but we’ll have to see what happens in the future.