Volkswagen's television ads have long been known for their very effective use of music. Their 1999 ad for the Cabrio, "Milky Way", famously used Nick Drake's moody song Pink Moon, and gave the late singer/songwriter one of the largest bumps in popularity his career had seen. It's clear that VW's ad agency DDB, places great value on finding just the right song for their ads. Even if that means making a knockoff of the song they want, like they did for a new Polo commercial.
DDB has a very long history with Volkswagen, and their current style of commercials resemble micro-movies where the underlying musical score does most of the heavy lifting to convey the emotional tone of the ad. A recent ad for the new Polo tells the story of a father raising and protecting his daughter, and the chosen song is an effectively heart-tugging melody who's main lyric is "I'll watch over you."
Beach House "politely declined" the offers to use their song in the ads, so DDB contracted Sniffy Dog, a company that produces music specifically for commercial use, to essentially make a knockoff of the song, called Whispers and Stories.
Whispers and Stories is pretty clearly modeled on Take Care, both in lyrical content and overall sound. Beach House, for their part, have been surprisingly fair in their response, saying on their site
People's comments/anger should not be directed towards VW or us. It was the ad agency that made these moves.
What DDB did isn't technically illegal, nor is it really surprising. They want to sell cars, and if they can't manipulate your tenderest emotions with a real song, they'll just go have one cloned. They're doing their job. That doesn't mean it doesn't suck and they're not a little disgusting, though.
Beach House may have some recourse, as there is some legal precedent. Eminem brought a lawsuit against another VW Group company, Audi, for using a sound-alike song in one of their European-market ads. So perhaps the Baltimore pair will get some shot at justice.
To make sure none of you get picked for the jury, here's the ad with the cloned song and the original song, so you can compare and form your own opinions. Happy opinionating.