Music Technology & Production
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. 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 an advertisement. 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...