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8 February 2023FeaturesCopyrightSarah Speight

Rick Astley’s voice ‘theft’ and the limitations of IP

English pop singer Rick Astley, who found fame during the 1980s, is suing a young American rapper for ripping off his (much-parodied) voice in the chart topper “Never Gonna Give You Up”.

The song was a massive success globally after its release in 1987 and enjoyed a resurgence in the 2000s with the Rickroll ’ internet meme.

Perhaps in a similar vein, “Betty (Get Money)”, written by Yung Gravy (Matthew Hauri), appears to parody Astley’s hit and features a soundalike vocalist who emulates Astley’s distinctive baritone tone.

“Betty” was an instant success following its release last year, going viral on TikTok and scoring number 30 on Billboard’s Hot 100 in the US.

While Astley’s producers Stock, Aitken & Waterman granted Gravy the rights to recreate the melody and lyrics from Astley’s original song—a process known as interpolation—Astley argues that he did not grant the rights to sample his voice.

But despite the existence of relevant case law, there appears to be no clear legislation—at least in the US and UK—to protect a voice per se.

Right of publicity

In his lawsuit filed last month at a California federal court, Astley is claiming the US right of publicity.

“A voice is as distinctive and personal as a face,” begins the complaint. “The singer manifests themself in the song. To impersonate their voice is to pirate their identity.”

Astley’s counsel, Richard Busch (a partner at King & Ballow and a well-known entertainment lawyer) quotes Midler v Ford, among others, in which singer Bette Midler successfully sued Ford in 1988 for using a soundalike singer in an advert to copy her voice, having only obtained a licence to use the musical composition to the song (“Do You Want To Dance”).

While the US Court of Appeals conceded in Midler v Ford that “a voice is not copyrightable”, it added that “what is put forward as protectible here is more personal than any work of authorship".

In Astley v Hauri, the defendants “flagrantly impersonated” and “have literally stolen [Astley’s voice], causing immense damage”, writes Busch.

Passing off and trading

Clive Thorne, a partner at McCarthy Denning in London, points out that while the voice can be protected in various ways, there isn’t necessarily universal protection.

“There's no intellectual property right which states a voice can be protected,” he tells WIPR.

The most important relevant IP right in this context, argues Thorne, is the English law of passing off, although it is “deceptive,” he adds.

“You've got to show you have a reputation,” he explains. In Astley v Hauri, “Rick Astley would have to show that he had a reputation as a singer, and a distinctive singer, and that's not difficult because that's his profession.

“So his reputation and all its different attributes as a singer, whether or not that's his appearance, if he wears distinctive clothes, his voice, other attributes associated with him are all part of his what would be known as ‘trading goodwill’.”

The key point here is ‘trading’, adds Thorne, as opposed to merely personal attributes.

“How Astley earns his money is to trade with all these different attributes. And if a third party makes use of those, for their own benefit, and relies upon them in some way such as to cause you damage, then that constitutes 'passing off' under English law.”

The most relevant case law here in terms of passing off, he says, is Clark v Associated Newspapers, in which Thorne represented former government minister Alan Clark.

“Certainly, to my mind, if we were sitting in England, Astley would be able to sue Mr Gravy for passing off in the same way that Alan Clark sued.”

In the US, meanwhile, there is no law concerning passing off, he notes, but in Midler v Ford, Midler “pursued a common law judgement against Ford for using her distinctive voice without her authorisation”.

Parody, meanwhile, may offer a defence in relation to certain aspects of copyright law, notes Thorne, but that would only apply to an artistic work.

Copyright and impersonation

Kerry Russell, legal director and intellectual property expert at Shakespeare Martineau, believes that this case is about more than copying or impersonating, rather than theft, of the voice, as argued by Astley.

“Yung Gravy was able to create a very close copy of a sample of the original recording [of “Never Gonna Give You Up”] without permission, including the music, the voice and the words.

“In the UK, this would be considered a potential infringement of a sound recording, not a voice, as protected under the Copyright, Design and Patents Act 1988,” argues Russell.

“In the US, celebrities may have rights which do not exist in the UK, such as image rights,” she says, conceding that Astley’s argument of violation of his right to publicity could hold true.

“Yung Gravy allegedly had a limited licence from the original music producers to ‘interpolate’ the original song, but such licence did not extend to what Astley’s lawyers say is a ‘deliberate and nearly indistinguishable imitation.’”

Trademarks

Citing Midler v Ford, Jani Ihalainen, an associate in the London office of law firm RPC, notes that the US case “did deal with adjacent subject matter”.

“The US Court of Appeals stated that a voice is not copyrightable, as the sounds are not ‘fixed',” he explains, “but that a voice is as distinctive and personal, so any misuse of an individual's voice could amount to an infringement of their personality rights—but not any intellectual property rights in their voice per se.”

Ihalainen goes on to say that other IP protections, such as trademarks or patents, “also do not give much of an avenue to protect one's voice, and might only provide very limited protection”.

“By way of example, trademarks can allow for an avenue to protect one's voice if, for example, a catchphrase is registered as a trademark as a sound clip. However, the protection there will only extend to that particular catchphrase and not their voice generally.”

Thorne also cites UK trademark law as being possible in certain cases, which made provision for the protection of sounds for the first time—but with the qualification that the sound has to be capable of being reproduced graphically.

“That was obviously designed to deal with advertising jingles, but there's no reason why that can't apply to a voice,” he says.

London Transport’s “Mind the gap” phrase “is a classic example of the sort of sound which could be subject to trademark protection” he suggests, which can be reproduced nowadays graphically.

However, he concedes that the phrase is a sound per se, rather than a voice, “but there's no reason why the sound coming out of that voice couldn't be protected”.

The obvious downside to this, he adds, is that you can only protect the limited reproduction.

“So in the 'Mind the gap' example, you're essentially protecting ‘Mind the gap’ and how it is sounding rather than the actual voice—[unless it is] sufficiently distinctive.”

Despite the lack of a universal protection of the voice, as Thorne says, one thing is certain: as with copyright, protection doesn’t necessarily need to be sought upfront, “you just have to have the evidence”.

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