MusicBusiness MusicTechnology& Production Year 3 K00121700Case StudyRonan Mitchell Abstract Copyright Law is an important entity within the music industry. It protects the owner of authorship from infringement. Infringement arises when the copyright owner’s work is used without their consent. Although sounds cannot be copyrighted, some cases have shown that the argument of copyrighting one’s voice can sometimes hold weight in a court of law. Singer Tom Waits sued snack manufacturer Frito Lay for hiring a singer to impersonate him in an advert.
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Mr. Waits felt that his artistic copyright had been infringed upon. Frito Lay’s defense argued that a voice cannot be protected by copyright law as it is a sound and not a musical piece of work. They referred to a similar case involving Bette Midler in which she sued Ford motors for using an impersonator in a commercial to imitate her voice. Although Midler lost the case, it created ambiguity over the issue of an artist’s right their voice, if they believe it to be distinctive. Tom Waits, unlike Bette Midler, won the lawsuit and earned him $2. 6 million.
This case served to highlight the complexities involved with advertising agencies using, not only an artist’s work, but also their identity. Introduction The music industry is notoriously rife with legal disputes. Many of these are due to infringement of copyright. A grey area arises, however, when it comes to advertising. In a lot of cases, an artist will gladly accept royalties and/or remuneration to have their song featured in anadvertisement. But in certain instances, artists will have strong opinions about having their music feature in an advertisement.
When this happens, advertising companies who use this artist’s work can find themselves in the middle of an ugly legal dispute. This case study endeavors to discuss some of the legal complexities involved when advertising companies use an artist’s musical work. Several cases exist in the United States where advertising agencies ran into legal disputes over music featured in an ad, even when not infringing upon standard copyright laws. I have chosen two cases to cross examine to highlight certain legal problems that certain advertising companies face.
The first case examined for this study is Tom Waits Vs Frito-Lay, Inc. In this case Tom Waits sued the Frito-Lay snack manufacturer and their advertising agency for voice misappropriation and false endorsement. Despite not infringing on any copyright laws, Waits won the case and was awarded $2. 6 million in compensatory damages, punitive damages and attorney’s fees. (Roesler, 1992). The second case examined in this study will look at is Bette Midler Vs Ford Motor Co. This case, which preceded Waits lawsuit, is almost identical in that Ford’s advertising agency, Young & Rubicam, Inc. hired an unknown singer to impersonate Midler on a version of her track “ Do You Want To Dance”. (Lurie, 1994) Midler took legal action and sued Ford for $10 million, also citing voice misappropriation. Unlike Tom Waits case, US District Judge A. Wallace Tashima ruled against Midler, stating that the evidence presented wasn’t sufficient and that a voice is not a copyrightable entity (Los Angeles Times, 1989) Study To better understand the legalities that face companies in these instances, we must first develop a better understanding of what copyright law entails. In short, Copyright is a property right.
It is a set of laws and regulations set in place to protect to form of expression of ideas. The ideas themselves cannot be protected by such laws. The idea must take on some tangible form, such as a recorded piece of music, a produced film, piece of art, etc. The owners of these rights are protected by copyright law from anyone who would copy their work and reproduce it for their own monetary gain without the owner’s express permission. It is the owner of the copyright who may authorize the use of their work by another party, but only they only reserve the right to do this at their discretion. Neff, 2012) Naturally, as there are many different mediums for expressing ideas, copyright law is divided into many different subsections. This is to cover all vessels for creative expression. On a simple scale, copyright subsists in four sections; Music, Film and Broadcast, Literary Publication and Original Databases. The music subset consists of Musical, Literary, Dramatic or Artistic Works. The musical copyright covers works of music that do not contain words. How notes are arranged to form melodies, song structures and chord progressions are protected by this copyright.
Certain musical elements are not protected by this. If a guitarist has particularly unique guitar tone, he cannot have this protect by a copyright. A specific tone is not a tangible musical work and therefore cannot be protected. However, if the same guitarist recorded an original piece of music with that guitar tone, this recording is now a tangible body of work and can be protected by musical copyright. It is the music itself that is protected. Not the sound. (Neff, 2012) This is a particularly interesting element of Tom Waits lawsuit against Frito-Lay.
The defendants argued that the “ voice misappropriation” case was invalid as one cannot own the rights to certain style of singing. (UMKC School of Law, n. d. ) Tom Waits is an American singer, songwriter, composer and actor. Almost as much for his music, he is renowned for his unique gravelly, guttural singing voice. His voice has been described as sounding like ” like it was soaked in a vat of bourbon, left hanging in the smokehouse for a few months, and then taken outside and run over with a car. ” (Graff, G & Durchholz, D 1998).
Tracy-Locke, Frito Lay’s advertising agent, approached Tom Waits about using is his song “ Step Right Up” in an advert for RioSalsa Doritos. They put together a version of the song which featured new lyrics relevant to the product and played this for Waits. Tom Waits refused outright as he is vehemently opposed using his music to sell products. It was interesting that they chose that particular song, as the lyrics are a satirical indictment of advertising. The song features advertising slogans used sarcastically to describe a product that supposedly does everything from “ shine your car” to “ make you six foot five, blonde and beautiful”. Jacobs, 2000) When he refused, the Tracy-Locke company then hired a singer to impersonate Tom Waits style of sing over a song that bared a lot of similarities the Waits “ Step Right Up”. Tom Waits took legal action and sued for voice misappropriation and false endorsement. (Roesler, 1992) As the lyrics for the song were altered to suit the ad, Waits literary copyright was unaffected. The literary copyright pertains to a work of words which are written, spoken or sung. This work does not specifically need to be written down for the copyright to apply. A recording of such work holds he same right as literary work that is written or printed. Written musical notation also falls under this subsection regardless if it is written down, printed or recorded. (Neff, 2012) As for the musical rights to the song, it transpired that Tom Waits, despite having written the piece, did not have authorship of the copyright for “ Step Right Up”. In normal circumstances, authorship of the copyright to a sound recording is held by the produce of said recording. In this case, the authorship fell to Fifth Floor Music run by Herb, Martin and Evan Cohen.
Frito Lay had in fact obtained the synchronisation license from Fifth Floor Music. This licence enabled them to reproduce a new song extremely similar, albeit not identical, to “ Step Right Up” to which the new jingle lyrics were added. Tom Waits was unaware of this so was unable to step in and terminate the dealings. Although, having no authorship of the copyright, it is questionable as to whether or not this would have had any sway in the proceedings at all. (Jacobs, 2000) Similarly, in Bette Midler’s case, like Waits, Midler was not the owner of the copyright.
She did not write the song nor did she pen the lyrics. Ford Co. bought the rights the song “ Do You Want To Dance” from the publishing company that had ownership over the copyright. This meant that Ford had no obligation to contact Bette Midler with regards to their intentions to use the song for their commercial. (Lurie, 1994) Since Midler had no ownership rights, the defense argued that her “ voice misappropriation” was preempted by the copyright act. However, this was rejected as they found that copyright cannot be preempted if the subject matter ” does not come within the subject matter of copyright….. ncluding works or authorship not fixed in any tangible medium of expression. ” (UMKC School of Law, n. d. ) It was decided that, since it was not possible to copyright a particular sound (like that of the guitar tone), the voice was not suitable copyright subject matter. Thus, copyright preemption did not apply. (UMKC School of Law, n. d. ) Although the court ruled in favor of the defendant, Midler’s case of “ voice misappropriation” raised the question of a celebrity’s right to control over their identity, withrespectto commercial use. This ambiguity was vital to the outcome of Waits lawsuit only three years later. Lurie, 1994) The copyright preemption issue in Midler’s case was referred to in Waits Vs Frito Lay. The defense requested that, since Tom Waits was not the lawful owner of the music copyright, the preemption of copyright law did not apply in this instance as it had with Midler. Waits case was not for infringement of a tangible copyrightable piece of work, but for infringement of voice. Again, voices are merely sounds; and sounds are not protected by copyright law. (UMKC School of Law, n. d. ) Despite this, the defense argued that, even though they had copied Waits musical style, they did not imitate his voice.
This was found to be untrue, however. It transpired that Tracy-Locke’s executive producer was quite concerned with the legal implications of their singer’s striking similarity to Waits’ voice. He requested that they record another version of the jingle asking the singer to sing less like Waits. Unhappy with the result, Frito Lay insisted they use first version. (UMKC School of Law, n. d. ) On the day that the commercial was due to air, Tracy Locke’s managing vice president spoke with their attorney regarding what legal issues they might encounter.
He was advised that there was a strong possibility of legal ramification due to recent case law that recognized a distinctive voice as protectable. However, as style was not protectable, their attorney informed them that the case might hold no merit. (UMKC School of Law, n. d. ) Despite the warning, Frito Lay chose the version that imitated Tom Waits’ distinctive voice. It was proposed that the jury be given a proposed instruction on the distinction between voice and style which read, “ In contemporary music, there are a great many styles or ” sounds,”…… Style is not subject to ownership.
No singer can appropriate for himself any style and exclude others from performing in the same style. Any singer is free to sing in the same style. ” (UMKC School of Law, n. d. ) This instruction was rejected by the district court. Given that there were a lot of similarities between this case and Midler’s “ voice-misappropriation” case, the jury was asked to decide whether or not they found Waits’ style to be distinctive. The defense argued that the omitted instruction was an error in judgment as this then left the jury unclear as to what the distinction was between voice and style. (UMKC School of Law, n. d. Waits argued that although no copyright infringement had occurred, he felt his artistic integrity had been compromised. It was put forth that anyone had heard the advertisement would automatically assume that it was Waits singing. Waits has strongly spoken out about artists takingmoneyto allow their music to be used to sell product. He felt that, as the Doritos advertisement jingle sounded identical to his voice and musical style, that his fans would assume he participated in the advertisement and had willing endorsed the product. This, he asserted, was damaging to his reputation and hiscareeras an artist. UMKC School of Law, n. d. ) The jury then listened to several of Tom Waits songs to determine both his musical and vocal style. The court then played them the Doritos advertisement in question for comparison. To convince them further, Waits attorneys had them hear testimonies from people who had in fact thought that it was Waits in the advertisement. (Roesler, 1992) This argument was persuasive enough to sway the jury. They were convinced when they heard to advertisement and the testimonies that, despite the fact that no copyrightable material had been infringed upon, Waits’ artistic integrity had been compromised.
The jury found that the defendants had “ acted with oppression, fraud or malice” (Roesler, 1992, p. 15). Tom Waits was awarded 2. 6 million dollars in compensatory damages and attorney’s fees. Conclusion In conclusion, we can see from the above cases that copyright is a bastion for musical artists. They help to protect an artist’s right to their work and a right to their form of expression from being exploited by large companies and advertising agencies who can sometimes try to profit from their work.
Although, as they are vital to protecting an artist’s creative work, we can also seen from the cases studied that they can protect much more than that. Technically, in the eyes of the law, only a tangible body of work can by protected by these rights. However, as this study has shown, in certain rare cases, these rights can be manipulated to encompass, not only an artist’s work, but their identity, persona and artistic integrity when exploited.
As made evident by the unusual Tom Waits lawsuit, it seems that advertising companies in particular must wade carefully when wishing to use unlicensed music for commercials. As their sole intention is for making money, they can be looked at very callously by court jury. Thus, certain unscrupulous can land in a lot of trouble despite not infringing on a copyrighted piece of work. Although situations such as this are quite unusual, they highlight the importance of copyright law within the music industry. References Graff, G & Durchholz, D 1998, Musichound Rock: The Essential Album Guide. Visible Ink, Detroit * Jacobs, J. A 2000, “ Copyright: Tom waits Vs Frito Lay”, viewed 04 January 2013, < www. tomwaitsfan. com/tom%20waits%20library/www. tomwaitslibrary. com/copyright-fritolay. html> * Los Angeles Times (1989), Bette Midler Loses Ford Sound-Alike Lawsuit : Celebrity: $10-million suit over TV car commercial is dismissed but action against the ad agency is allowed to stand, viewed 06 January 2013, http://articles. atimes. com/1989-10-27/business/fi-901_1_bette-midler * Lurie, K. (1994) Waits v. Frito-Lay: The Song Remains the Same.. Cardozo Arts & Ent. LJ, 13, 187. , Available at: http://heinonline. org/HOL/LandingPage? collection= journals&handle= hein. journals/caelj13&div= 26&id=&page= [Accessed: 6th January 2013]. * Neff, F. 2012, ” Copyright and Related Rights Act 2000; Introduction to Copyright Overview And Originality in Copyright”, * Neff, F. 012, ” Authorship and Ownership of Copyright; Copyright and Related Acts 2000 Sections 21 to 23″, * Roesler, M. (1992) Waits v. Frito Lay,. 978 F. 2d 1093 (9th Cir. 1992), Available at: http://www. markroesler. com/pdf/caselaw/Waits%20v. %20Frito-Lay%20Inc. %20_1992_. pdf [Accessed: 6th January 2013] * University of Missouri Kanas City School of Law (1992) Waits v. Frito Lay, Inc. United States Court Of Appeals For The Ninth Circuit, Available at: http://law2. umkc. edu/faculty/projects/ftrials/communications/waits. html [Accessed: 4th January 2013].