Rick Astley Sues Yung Gravy for Use of Imitation Voice in “Betty (Get Money)”

Singer Rick Astley is suing rapper Yung Gravy for vocal imitation in his smash hit, Betty (Get Money). Scott Hervey and Josh Escovedo talk about this case on this episode of The Briefing by the IP Law Blog.

Watch this episode on the Weintraub YouTube channel here.

Cases discussed:

• Richard “Rick” Paul Astley vs. Matthew Hauri PKA Yung Gravy; Nick Seeley PKA Popnick; Dillon Francis; David Wilson PKA dwilly; Republic Records
• Midler v. Ford Motor Co.
• Waits vs Frito Lay

Show notes:

Scott Hervey:
I’m Scott Hervey with Weintraub Tobin.

Josh Escovedo:
And I’m Josh Escovedo with Weintraub Tobin. Rick Astley has sued Yung Gravy for use of an imitation voice in his smash hit, Betty (Get Money). That’s what we’ll be discussing on this installment of the Briefing by the IP Law Blog.

Josh Escovedo:
Rick Astley, artist of the hit song Never Going to Give You Up from 1987, has filed suit against rapper Yung Gravy for impersonating his voice on Yung Gravy’s breakout hit, Betty (Get Money). Astley claims that Gravy imitated his voice without legal authorization and has therefore filed suit in Los Angeles County Superior Court, alleging violation of his right of publicity under California law.

Josh Escovedo:
According to Astley’s complaint, Gravy seeks to capitalize off of the immense popularity and goodwill of Mr. Astley by creating a nearly indistinguishable imitation of Mr. Astley’s voice throughout the song. For reasons that we’ll be discussing, Astley did not file a claim for copyright infringement. But while copyright law may not be at issue in the complaint, it is likely to be at issue in the dispute itself. Scott, can you explain to our listeners why Astley did not file a claim for copyright infringement?

Scott Hervey:
Sure. In order to understand why Astley didn’t file a claim for copyright infringement, it’s important to understand that music has two different copyright elements. First, there’s a copyright element in the composition or publishing elements which protects the lyrics and musical arrangement. And then there is a copyright interest in the actual sound recording, which protects the song as performed by an artist as captured on a master recording.

Scott Hervey:
Astley’s complaint concedes that he does not have the rights in the composition. Oh, all that publishing money that he’s missing. But it also indicates that he has a partial interest in the copyright in the recording. So apparently, Gravy obtained what’s called a synchronization license to use the copyright in the composition. But he didn’t obtain a copyright to use the master recording. But he didn’t need to do that because he recorded his own performance of the composition.

Scott Hervey:
A copyright in the recording would only have been necessary if Gravy had actually used part of the existing master recording in his track as a sample, but he didn’t do that, and thus he did not need to get a master use license. For the same reason, Astley’s partial ownership in the copyright of the master recording of Never Going to Give You Up was not infringed because Gravy did not sample the master recording in his song. Apparently, Gravy had, I believe it was, his producer sings that part of the track. But as Josh said, that doesn’t mean that copyright won’t be an issue in this dispute.

Josh Escovedo:
That’s right, Scott. In fact, the Copyright Act is one of the two key reasons why Yung Gravy is likely to walk away from this lawsuit relatively unscathed. The Copyright Act expressly provides that a state cause of action is preempted if it creates rights that are equivalent to any of the exclusive rights within the general scope of copyright in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright.

Josh Escovedo:
Of course, express preemption is not necessary for a law to be preempted, as the law also provides for implied conflict preemption, which occurs when a state law poses an obstacle to the accomplishment and execution of the full purpose and objectives of Congress. Here, there’s a strong argument that the Copyright Act was intended to address this exact situation.

Josh Escovedo:
Section 114(b) of the Copyright Act provides that the rights of an owner of a copyright and a sound recording are limited to the right to duplicate the actual sounds in the recording and the right to prepare derivative works in which those actual sounds are rearranged, remixed, or otherwise altered in sequence or quality. In other words, as the copyright office has published, permission from the copyright owner of a preexisting sound recording is not necessary when interpreting a musical work, regardless of how similar the new record may be to an old recording.

Josh Escovedo:
This is because under United States copyright law, the exclusive rights in sound recordings do not extend to making independently recorded soundalike recordings. So the question here is whether Astley’s right of publicity claim should be preempted by these provisions of the Copyright Act since Astley wouldn’t be able to state a claim for copyright infringement.

Scott Hervey:
Interestingly, the Ninth Circuit has had two opportunities to address this issue. Midler versus Ford Motor Company and Waits versus Frito Lay. In both of these cases, the Ninth Circuit addressed claims involving the right of publicity for the use of a soundalike in the commercial context of a commercial. One was for Ford and the other was for a Frito Lay product.

Scott Hervey:
In Midler, the Ninth Circuit found that the claim wasn’t preempted by the Copyright Act because Midler was not seeking damages for Ford’s use of the song at issue, but was instead seeking damages for Ford’s use of her voice, for the use of her name, voice, and likeness, which was not copyrightable. In Waits, the Ninth Circuit indicated that as a three-judge panel, they were not at liberty to reconsider Midler and would not have disturbed the ruling, even if they could. The preemption analysis in both claims is sparse.

Josh Escovedo:
That’s right, Scott. And Astley’s counsel actually mentions the Midler case repeatedly in the complaint, interestingly enough. But I think that both of those cases were wrongly decided, at least with respect to the preemption analysis, which, as you mentioned, is pretty sparse. So neither Midler nor Waits bothered to consider whether the plaintiff was suing over the use of the plaintiff’s voice in the abstract or as applied to a specific recorded performance.

Josh Escovedo:
If the courts had taken the time to consider that fact, it seems to me that they would have had to find that the right of publicity claim, at least in this context, should be precluded by the Copyright Act, which permits soundalike recordings under federal law. It would seem to me that to allow a right of publicity claim to move forward, despite this clear permissive use under copyright law, it would be a direct conflict between the right of publicity and the Copyright Act.

Scott Hervey:
That’s interesting, Josh. I don’t know if I agree with you. At the same time, I don’t know that I disagree. I just haven’t given this enough thought yet. But I will say this, if you are correct, then that means that it’s open season for celebrity singers for the ability to use their voice or the sound of their voice to sell products or services in commercials, which is different.

Scott Hervey:
It’s a different scenario than what’s at play here in the Yung Gravy-Astley case, where Yung Gravy is using a singer who sounds a lot like Rick Astley in a creative work, a creative speech, non-commercial speech, as opposed to Waits and Midler, where the soundalike singer was used in commercial speech, which arguably or understandably is entitled to lesser degree of protection under the First Amendment than non-commercial speech. It’s interesting, though. You raise an interesting point. But let’s talk about this other potential defense as well.

Josh Escovedo:
Sure. And just to briefly respond to what you just said, Scott, I think that if the courts were to find that there should be preemption, I think that preemption would need to be narrowly tailored. It would have to be in this context where the soundalike… It can’t actually be the celebrity, it would have to be a soundalike. And then I think it would have to be in the context of a work that had already been reduced to a prior recording. And in that context, I think that preemption would make sense.

Scott Hervey:
But I think both in Midler and Waits, they were prior recordings. They were recordings that Midler and Waits had already made, I believe. And the advertising agencies just got a soundalike to sing those exact songs. So, what the preemption argument does is it blows a big hole in 3344 where you’re using a renowned singer’s sound, voice to sell goods and services where that singer did not authorize their use to sell those goods and services, maybe doesn’t believe or support that organization or company that’s selling those goods and services. I don’t know. I just see this as being extremely problematic.

Josh Escovedo:
Sure. I mean, it’s a fair point. That is certainly true. But I suppose if we think about it, that same situation would be permissible under the Copyright Act, so long as the party who utilizes the soundalike actually procured the license to utilize the copyright in the composition. And the celebrity or artist wouldn’t be able to do anything about that.

Scott Hervey:
Well, true, they wouldn’t be able to do anything about it if the advertising agency secured a sync license, but the singer who sings the song for the commercial, arguably, going along with this hypothetical, wouldn’t sound like Tom Waits or Bette Midler. And that’s the difference.

Scott Hervey:
Maybe the preemption argument needs to focus on whether it’s commercial speech or non-commercial speech and the degree of protection that that type of speech is entitled to under the First Amendment because as you know, commercial speech is entitled to a lesser degree of protection than non-commercial speech under the First Amendment. Interestingly, maybe that’s where the case would have to draw a line.

Scott Hervey:
While we’re talking about 3344, I think Rick Astley has a problem there anyway. Let’s assume that the preemption doesn’t apply. I think he’s got a problem anyways. I don’t think he’s got a case under California Civil Code Section 3344, which specifically addresses, as we’ve just been discussing in the case of Waits and Midler, the use of a celebrity’s name, voice, or likeness on or in products, merchandise, or goods, or for the purpose of advertising or selling or soliciting purchases of products, merchandise, goods, or services. What do you think about that? Do you agree?

Josh Escovedo:
Yeah, I agree with you on that, Scott. I think, in fact, that the 3344 claim is likely to be dismissed at the onset of this case, assuming there’s motion practice, which I fully anticipate. It’s possible that Yung Gravy will first remove this case to federal court because the federal judiciary more commonly deals with these issues of copyright law and federal preemption. So, it’s possible he’ll remove first, in which case the plaintiff would be facing a motion to dismiss as opposed to a demur.

Josh Escovedo:
But for purposes of the discussion, really the same thing here. But the question would be, does 3344 permit a claim in this specific context? And it does not. So, I think that the plaintiff will have to pursue a common law claim for the violation of his right of publicity. But I don’t think he has grounds to move forward under 3344.

Scott Hervey:
I agree with you. And let’s remember the de Havilland versus FX case where there was a 3344 claim that was raised. The court assumed for argument’s sake that a television program is a product, merchandise, or good, but it found that de Havilland’s claim failed. The court noted that the speech in FX is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life, including the stories of real individuals, ordinary, extraordinary, and transform them into art, be it books, movies, plays, or in this case, sound recording.

Scott Hervey:
The fact that FX did not get de Havilland’s rights to use her name, voice, or likeness did not change the court’s analysis. I think the court’s ruling in the Havilland that the First Amendment, for the purposes of a creative work, outweighs somebody’s right of publicity under 3344 will rule the day here as well.

Josh Escovedo:
Right. And that brings us back to the other defense that I was mentioning, Scott. And I think at this point, it’s the elephant in the room, and that’s the First Amendment. Midler and Waits both involved commercial use, so not a truly expressive work. Here, Betty (Get Money) is clearly an expressive work, and as such, it’s entitled to significantly greater protection than commercial speech, which was what was at issue in Midler and Waits.

Josh Escovedo:
So as a result, the court will give Gravy more leeway in terms of how he could have imitated Astley’s voice without violating the right of publicity. Of course, the distinction between the expressive work in this case and the commercial work in the Midler case and the Waits case could also serve as a basis for distinguishing this situation from the Midler precedent without having to overturn it for purposes of the preemption analysis that we had been discussing.

Scott Hervey:
Yeah, it’s a significant distinction. It’ll be interesting to watch this case if this is litigated through motion practice and if a court does find… Let’s assume they don’t find preemption, but in fact, they do find that this is not a violation of 3344. This actually might open up a whole new industry or an alternative to sampling. If you want to sample an audio clip, you don’t necessarily need to get a master-use license. You can just get the sync and rerecord that hook and drop it into your track and not have to deal with artist permission.

Scott Hervey:
This has a bigger ramification than this Rick Astley, like this narrow issue of the use of this hook in Rick Astley’s hook in this song. It can have a much bigger impact on the music industry as a whole.

Josh Escovedo:
Right. I’m sure the entire music industry is watching this one.

Scott Hervey:
Yeah. Well, we’re going to watch it too, and we’ll report back if there’s some motion practice.

Josh Escovedo:
Thanks, Scott.

Scott Hervey:
Thanks, Josh.

Josh Escovedo:
Thanks for tuning into this installment of the Briefing by the IP Law Blog. Don’t forget to subscribe to our podcast and YouTube channel. Leave a positive review. And for additional content, visit our website at the iplawblog.com. Thank you.