I recently saw something on the Internet that made me do a double-take.

That’s a difficult feat to achieve in 2014, but Gawker’s November 11th article entitled, “’Indie’ Bands Sell Out Just to Sleep in Corporate-Run Crash Pad.” disrupted my morning scroll in a serious way. Before I read a word of the piece, I scrutinized the publication date thinking this must be some decades old screed dug up for nostalgia purposes. Nope. 2014.

The article detailed the creation of a building in Brooklyn, NY called “The Brooklyn Patch”, bankrolled by the Sour Patch Kids candy brand, where music acts can stay free of charge in exchange for video content and, of course, the implicit soft alignment with the brand name that occurs when this kind of deal is struck. The Gawker article, written by Hamilton Nolan, harshly criticized the “indie” band (his use of quotations, not mine) Deer Tick for participating in the stay-for-play agreement.

There’s plenty of good reasons to find this headline shocking. The very idea of bands “selling out” has not only been completely absent from our culture for, arguably, a solid decade, but it’s also an idea that has been activelydeclared dead by numerous mainstream sources and renowned artists. Soon after Gawker’s piece was published, both Stereogum and Pitchfork added fuel to the fire offering their own coverage of the “scandal”, not without subtle tinges of distaste for the whole enterprise in their pieces as well.

So, why now? And why are these big web publications pointing the finger? Why start with Deer Tick? Naturally, like any good American, I took my questions to Twitter and started annoying the author of the Gawker piece about the hypocrisy at hand.

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A little later that night, Nolan did address my issue, telling me, “as you may know media is typically ad-funded whereas art and music are not (and should not be in my opinion).” The idea that journalism is immune from the influence of corporate sponsorship aside, it’s not like I completely disagree with him (and hey, let’s talk about whatever ads accompany this article in the comments, I encourage that). I simply can’t figure out where he had been hiding for 15 years and why he decided to rekindle the “sell-out” conversation with the innocuous example of Deer Tick staying at “The Brooklyn Patch.”

After all, hundreds of indie bands have recently engaged in this kind of soft brand alignment in exchange for free studio time via the Converse’s Rubber Tracks program (full disclosure: I am in a band that has participated). Why did Best Coast and members of Vampire Weekend, or any band that’s worked with Converse in the past few years get a free pass? Not a snarky Gawker, Stereogum, or Pitchfork article in sight on that front. Is “The Brooklyn Patch” more distasteful to the music community because the product itself is sort of ridiculous? With infinitely more popular, wealthier acts taking part in significantly more icky partnerships with brands, why zero in on Deer Tick or Sour Patch Kids?

I dutifully argued with people on Twitter all night, but found no answers. There is a fairly easy answer, though, as to why music fans stopped caring about their favorite bands selling out. That’s not a mystery.

In the ’90s, before the Internet became prevalent, fans could somewhat safely assume that their favorite bands were making some kind of living off their music via album sale royalties (or at least advances) and concert revenue. Therefore, any act that “sold out” by taking a huge major label deal or lending their music to a commercial, could be identified as greedy, needing more money than is required to live, and in turn, untrustworthy— their artistic voice for sale.

When this music industry model crumbled in the wake of illegal downloading, it became apparent that even some very popular, critically lauded bands were definitely not making a living from their work. This fact became apparent to fans because bands either a) talked about that fact publicly, or b) fans looked at the piles of digital files they had illegally download and did the math. In exchange for their crimes, fans everywhere tacitly agreed to stop the “sell out” witch hunts– i.e “You need to put your song in a credit card ad because I’m longer paying for your music? I’m comfortable with that arrangement.”

Couldn’t you feel Bob Dylan almost taunting music fans to speak about this tacit agreement out loud in his 2004 Victoria’s Secret ad? It’s hard to sit on top of a moral high horse when your pockets are weighed down with lifted MP3’s from Napster, I guess.

The Part About The Neutral Milk Hotel Juice Ad

Whether you personally consider any of that “selling out” or not, we can at least agree that the acts we’ve referenced so far were allowed to actively make a decision about their involvement with brand alignment. Meanwhile, some brands are apparently done paying the talent for their endorsements or even asking for permission.

From 1994 to 1999 Neutral Milk Hotel created a weird universe in the span of two full length albums and two EPs before disbanding due to front-man Jeff Mangum’s uncomfortableness with touring and the intense reactions their album “In The Aeroplane Over The Sea” inspired amongst fans. They are, without a doubt, one of the least likely bands to ever approve their music or image being leveraged for a commercial endorsement.

During this past fall’s Boston Calling music festival, I searched Twitter to see what people were saying about that night’s show, which would include a performance from the legendary band. There I encountered a photograph of NMH member Julian Koster, preparing his instrument for performance and a couple of bottles of juice in front of him near his leg. His expression looks dubious.

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This tweet from the organic cold-pressed juice company had unwittingly turned Neutral Milk Hotel into spokespersons for their product. NMH or Koster didn’t get paid, they didn’teven agree to it. Now, it should be noted, Pure Cocobeet is not a gigantic, evil, faceless company— they’re a small local start-up who are just trying to get their foot in the door. But doesn’t this kind of behavior seem kind of gross and unfair to artists who have consciously avoided commercial entanglement their entire career? Doesn’t it seem like this kind of no-choice forced entry into an ad seems a lot more worthy of calling out than something like the Sour Patch Kid house?

If that example seems too small, too insular to you, let’s look at this kind of practice on a macro scale. On the same day as the Gawker “sell out” piece was published, Complex Media collected a couple dozen tweets in which major brands quoted and altered popular music lyrics to be about their product. “You can find me in the club, pocket full of subs” one Jimmy Johns tweet declared, garnering over 600 retweets for its clever(?) alteration of the 50 Cent line.

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This Wendy’s tweet equates a sexual attraction to ass with eating hamburgers, btw

“It’s no secret that companies spend millions of dollars annually an in effort to persuade a younger crowd to buy into their brands,” the commentary accompanying the Complex article began, “[but] thanks to Twitter, companies are having an easier time reaching their audience with a much more effective marketing plan.”

When Carly Simon allowed Heinz Ketchup to re-purpose her 1971 single “Anticipation” in a commercial about the titillating wait that occurs before the condiment emerges from the bottle, she was paid handsomely for the usage.

When David Bowie shilled for Pepsi in the ’80s, you bet your ass he brought home a huge paycheck (part of which bought him the freedom to work on and make his truly weird records of the early ’90s,or at least a shit load of drugs, one can imagine).

The list goes on and on. Even non-consenting artists held power. Tom Waits successfully sued Frito-Lay for millions in 1992 for a campaign that was declared to involve “voice misappropriation and false endorsement.” Is it too extreme to identify the practice of these tweets as “false endorsements”? Is it worth talking about how they basically serve as ads that the artist neither agrees to or gets compensated for? “Call them corny,” the Complex article says of these brands, “but you certainly can’t call them out of touch.”

This kind of behavior—brands parodying art in order to sell something—has a history. But for TV ads, it came to a screeching halt in 1988 when Bette Midler successfully sued the Ford Motor Company in a case that centered around “the protectibility [sic] of the voice of a celebrated chanteuse from commercial exploitation without her consent.” The judge’s official ruling is full of beautiful, poetic statements such as, “A voice is as distinctive and personal as a face. The human voice is one of the most palpable ways identity is manifested.”

Matthew Harris knows all about that ‘vocal identity.’ Harris is a musicologist who works for ad agencies, film companies, and songwriters who want to know if their musical composition bares too close of a resemblance to a preexisting piece of work. Since 1987, he’s analyzed 7700 compositions hunting for signs of plagiarism.

“Usually, no one wants to rip anyone off,” Harris explains to me over the phone, “But when you’re selling something, you don’t have as much legal room. You have parody rights if you’re making an artistic statement. But commercial speech doesn’t have parody rights.”

So, in the case of these lyrical parody tweets that are so popular with big brands these days, there’s currently no law in place that discourages this kind of usage. That kind of regulation could be just one lawsuit away. As it currently stands, any brand can co-opt a lyric from a song, a line from a film, or a passage from a book and twist the reference to be in support of their product. No permission, no compensation necessary.

I have long been on the hunt for for the earliest known example of a musician selling their preexisting work of art to a brand for commercial usage, and I think I’ve found it. Bascom Lamar Lunsford’s 1935 recording of his song “Good Old Mountain Dew” was used as the first advertising theme for Mountain Dew soda in the early 1940’s. Lunsford was compensated for the usage with a train ticket. At least he was given a ride home.

The Part Where Comedians Have Meltdowns & Call Them Ads

There’s one niche of culture where artists and brands seem to getting along really well lately, and from the outside, it sort of looks like the artists are currently in the alpha dog position. You won’t hear many comedians trashing the pay-out rates for streaming services, or defending themselves against “sell out” accusations in the press— they’re too busy harnessing the complete freedom of the podcast format and getting paid by brands for endorsements that often contain blatant misreads if not bordering on complete insanity.

“Sorry, what the fuck am I selling?” Bill Burr manages to blurt out in the middle of a hysterical breakdown during an ad read for Shari’s Berries that appeared on an episode of his popular Monday Morning Podcast in 2013. “Who the fuck is gonna buy this shit?” Burr asks out loud, barely squeezing in words between fits of laughter.

It’s not only one of the funniest ads I’ve ever heard, it’s one the most honest moments you’ll find on a podcast. As he gathers himself back together, Burr mentions, “You better buy some Shari’s Berries because I’m gonna get in trouble for that fucking read. But I’m not changing it, cuz that was hilarious.”

He didn’t change the read and surprisingly it took on a life of its own. Fans went nuts for it, comedian Patton Oswalt gleefully tweeted that it was the funniest thing he had heard in weeks, and everyone sort of waited for the inevitable furious response and disassociation from the berry company. But that never happened.

“People often have meltdowns over our berries– it’s just usually after they’ve eaten the last one.” the official Shari’s Berries Twitter account announced, embracing the Burr-fueled-insanity. The whole debacle turned out to be a big win for Burr, his fans, and Shari’s Berries. Everyone was satisfied, which is a rarity in this kind of transaction. It remains one of the only commercials I’ve ever voluntarily listened to twice. With ads like this paving the way, this type of off-the-rails ad read is becoming not out of place in the growing world of podcasts.

(Side note: the most popular podcast in the world right now is called Serial, and it’s worth noting that each episode begins with an ad for MailChimp in which a child mispronounces the name of the company— this misread has become a viral meme in and of itself).

Midroll Media is a Los Angeles company that sells advertising slots on podcasts which appear on the Earwolf network and many others.

“The ad is clearly a sponsorship message, nobody is being tricked,” Adam Sachs, the CEO of Midroll explains to me in an email, “But integrating the message into the content makes it less intrusive and more engaging.”

When I continue to ask Sachs about off-kilter ad reads and if advertisers are ever nervous or displeased with the results, he hands me off to the head of Sales and Devlelopment at Midroll, Lex Friedman. Friedman calls me later that day to talk. “When advertisers get familiar with a certain podcast host, they become a lot more comfortable with the creative styles they might use,” he tells me. “For instance, Hulu Plus know Doug Benson (host of the Doug Loves Movies podcast) quite well now, and understand he’s going to do a good job even if it’s not the script they would’ve written.”

When I ask if advertisers are ever flat out displeased with what goes on inside the span of one of their podcast ads, Friedman explains, “We don’t bat .1000. There have been times when the advertiser doesn’t love it. I mean, I bet the first time the Shari’s Berries people heard Burr’s read they were FREAKED OUT. But, I think it would be very hard to stay displeased with the end result of that ad.”

I ask Friedman about two possible places I could see this trend going: 1) will we see the looseness of podcast ad reads transfer to larger platforms, like TV commercials that are in the style of Burr’s meltdown? or 2) Will bigger companies flock to the podcast platform to try out the power of the free-form ad? Friedman thinks for a moment and then offers his prediction, “The latter. I can’t see this style working on television. Too many constraints. But Ido think we’re going to be working with bigger companies this year. Large corporations are interested, for sure.”

Meanwhile, comedy duo Tim Heidecker & Eric Wareheim are pushing the envelope to find out what is the limit on the level of weird you can cram into an ad and still get paid for it. In their latest for Totino’s Pizza Rolls, a bald man in a faux-leather jacket holds a cartoon bass guitar, looks at the camera, and declares, “You can keep all that corporate BS, I’m into punk pizza rolls with Totino’s!” He proceeds to play slap bass, Heidecker screams at someone off camera for screwing up a music cue, and an elderly woman appears on screen with a pizza placed on her face, three holes cut in it so she can see and breathe. An off-putting man with a bad haircut says, “I’m part of the Totino’s lifestyle. I’ll admit it.”

There is no doubt about it, Tim & Eric are getting paid to disassemble the product they were hired to endorse, but that’s exactly why they were given the job. (They’ve done similar work for Absolut, Old Spice, and GE).

Again, it’s hard to see any losers here: Tim & Eric get to act as weird as they want to, audiences are pleasantly bewildered, and the brand sees results when they employ minds that bizarrely drag their product through a green-screen nightmare.

Is this what a modern-day healthy relationship between artist-spokesperson and advertiser should look like? Is there such a thing? Is there anyone on Earth who could make a case that something like this constituted selling out or a corruption of artistic intent?

Is the future of commercials a world where geniuses are paid to trash the product in a sort of non-endorsement-endorsement? Musicians might need to ponder these questions and figure out if some variation of this strategy might apply to them— it’s one of the few remaining ways they’re going to earn enough money to produce their next potential masterpiece, never mind making a living.

In the conclusion to this piece, we’ll ask Marnie Stern how much money she makes, we’ll do some expletive-laden math trying to understand streaming royalties, and talk to Pitchfork’s pariah. Continue to ‘Some Alternatives Part II’