Copyright Preempts Invasion of Privacy

Column Editor:  Bruce Strauch  (The Citadel)  <[email protected]>

DEBRA LAWS V. SONY MUSIC ENTERTAINMENT, INC., dba EPIC RECORDS UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT 448 F.3d 1134; 2006 U.S. App. LEXIS 1283.

Debra Laws, vocalist, and Spirit Productions (Spirit) contracted with Elektra/Asylum Records to produce recordings of Laws’ performances.  Elektra got “sole and exclusive right to copyright such master recordings” and “exclusive worldwide in perpetuity … to lease, license, convey or otherwise use or dispose of such master recordings.”  Elektra also got the right to use Laws’ name, likeness and bio.

Hmmm.  I’m sure they seemed so nice when they showed her the Cities of the Plain.

Next, Elektra contracted with Sony Music Entertainment, Inc. to grant Sony license to use a sample of Laws’ recording of “Very Special” in the song “All I have.”  This was performed by L.L. Cool J. and Jennifer LopezLaws got no money.

I’ve listened to the thing, but don’t get where her bit was blended in.

Sony then released a Jennifer Lopez CD and music video with ten seconds of the same.  The song became a mega-hit with a net of forty-million bucks.

And I presume that’s after creative music industry accounting.

Laws sued in California state court for the old common law invasion of privacy — appropriation of name and voice.

Sony removed it to the U.S. District Court, saying her claim was preempted by the Copyright Act.  And there they won summary judgment.

Appeal

And of course we know the U.S. Constitution gives Congress the power to promote useful Arts and blah blah.  Copyright gives the holder the right to control the work and either distribute it or withold it.  Or produce derivative works, which I guess this is.  Blending it in another song.

Sections 301(a) and (b) of 17 U.S.C. provides preemption.  But it does not limit or eliminate state remedies outside copyright.

You can see where this is headed.  She signed away her rights.  But first, we need a two-part test to determine preemption.

Certainly better than three-pronged.

Laws asserted the common law right to privacy (appropriation of name or likeness) which is found in every state.  Someone (1) used her identity;  (2) made money off it or got some other advantage;  (3) weren’t given consent;  (4) she’s injured.

Sony said this is not ordinarily preempted, but is under the facts of the case.

Now Two-Part Test Part A

Is the misappropriation claim within the subject matter of Copyright?  Copyright protects works fixed in a tangible medium of expression.  And that includes sound recordings.  It’s fixed when it can be communicated for more than a transitory period.  You sing, sit down and shut up.  That’s not fixed.  Sony had a sound recording.  Once a voice is part of it, it can be communicated over and over, and falls within the subject of copyright.

Remember Bette Midler?  Boy, that’s showing your age.  In Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988), a professional “sound alike” had imitated her voice from “Do You Want to Dance?”  Midler didn’t want to do the commercial, so an ad agency got a license from a copyright holder.  A back-up singer who could imitate her voice did the song.  And was told to sound like her.  Midler was not seeking damages from the use of the song, but from the misappropriation of her voice.  Her voice was not copyrightable, so this suit was outside of copyright law.

Midler was applied in Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992).  Tom Waits sued for “infringement of voice.”  The question was whether Waits’ voice was sufficiently distinctive to give him an action for appropriation.

Laws’ voice was in a tangible medium, and Sony held copyright.  The entirety of the alleged misappropriation was within the fixed medium of the copyright recording.

And Now Part B of Our Test

Is the rights she’s asserting the same as those of copyright law?  And, of course, it is.

Laws simply objects to having her voice included in the Jennifer Lopez recording.  Or at least not getting paid for it.  But she had signed away copyright.

 

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