Copyright Law Case Study

Music Business Music Technology & Production Year 3 K00121700 Case strike Ronan Mitchell Abstract Copyright wing Law is an important entity within the music industry. It protects the owner of authorship from misdemeanour. Infringement arises when the right of first publication owners over work out is used without their consent. Although sounds keister non be procureed, some elusions involve shown that the argument of secureing ones representative can sometimes hold weight in a court of law of law. Singer tom turkey 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 Lays disproof argued that a translator cannot be protected by copyright law as it is a sound and not a melodic piece of work. They referred to a similar faux pas involving Bette Midler in which she sued Ford motors for using an impersonator in a commercial-grade to imitate her voice. Although M idler lost the case, it created ambiguity over the issue of an artists right their voice, if they believe it to be characteristic. tom Waits, un uniform 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 artists work, but also their identity. Introduction The music industry is notoriously rife with court-ordered disputes. Many of these are due to infringement of copyright. A white-haired(a) 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 tune featured in an advertisement. tho in certain instances, artists will have strong opinions about having their music feature in an advertisement.When this happens, advertising companies who use this artists work can find themselves in the middle of an ugly intelligent dispute. This case study endeavors to discuss some of the legal complex ities involved when advertising companies use an artists 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 turkey 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 attorneys fees. (Roesler, 1992). The second case examined in this study will human face at is Bette Midler Vs Ford Motor Co. This case, which preceded Waits lawsuit, is almost identical in that Fords advertising agency, Young & Rubicam, Inc. hired an unknown singer to imp ersonate Midler on a version of her track Do You expect 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 wasnt 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 rectify of laws and regulations set in place to protect to form of formula of ideas. The ideas themselves cannot be protected by such laws. The idea must take on some visible form, such as a recorded piece of music, a alleged 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 owners express permission. It is the owner of the copyright who may authorize the use of their work by some other party, but only they only reserve the right to do this at their discretion. Neff, 2012) Naturally, as in that location are many different mediums for expressing ideas, copyright law is carve up 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 true 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 guitar player has particularly unique guitar tone, he cannot have this protect by a copyright. A specific tone is not a tangible musical work and in that loca tionfore 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 drill 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 expound as sounding like like it was soaked in a vat of bourbon, left hanging in the smokehouse for a few months, and hence taken outside and run over with a car. (Graff, G & Durchholz, D 1998).Tracy-Locke, Frito Lays advertising agent, approached Tom Waits about using is his song musical note R ight 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 fine-looking. 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 comp ose, 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. pen 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 5th 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 oblivious(predicate) of this so was unable to step in and term inate 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 Midlers 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 military issue 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 d ecided 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, Midlers case of voice misappropriation raised the question of a celebritys right to control over their identity, with respect to commercial use. This ambiguity was vital to the outcome of Waits lawsuit only three years later. Lurie, 1994) The copyright preemption issue in Midlers 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-Lockes executive producer was quite concerned with the legal implications of their singers 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 Lockes 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 vers ion that imitated Tom Waits distinctive voice. It was proposed that the board 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 Midlers 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 fracture 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 gain that it was Waits singing. Waits has strongly spoken out about artists pickings money to 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 his career as an artist. UMKC School of Law, n. d. ) The jury then listened to several of Tom Waits songs to trammel 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 ideal 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 th at, 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 attorneys fees. Conclusion In conclusion, we can set from the above cases that copyright is a bastion for musical artists. They help to protect an artists 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 artists 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. manifest 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. hypertext markup language * Los Angeles Times (1989), Bette Midler Loses Ford Sound-Alike Lawsuit Celebrity $10-million suit over TV car commercial is disregard 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 sixth 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 h ttp//law2. umkc. edu/faculty/projects/ftrials/communications/waits. html Accessed 4th January 2013.