In my Film, History and Form Class (yes, the same class which told me “Happy Birthday,” which is actually owned by Warner Music Group, was owned by an 86 year old woman whose uncles wrote her the song for her birthday) we are learning about soundtracks to films. Obviously, to license a popular song for a film can cost hundreds of thousands of dollars. Therefore, one technique used in soundtrack-making is using “sound-alikes.” Sound-alikes, according to my class, are songs which are commissioned by a studio to be created by a composer which evoke the feeling of an original song. They obviously doesn’t cost as much to use in the film, and are meant to trick the audience into thinking they’re hearing the original song because the differences are so minute.
Though we didn’t spend too much time on it in class, our professor did say there have been copyright claims filed against film and television commercial production companies for sound-alikes. In its sound-alike article, Wikipedia makes note of a case in the ‘80s in which Bette Midler sued a commercial agency for using what sounded identical to her voice in an ad for a Lincoln Mercury. According to the defendants, they (the ad agency Young and Rubicam, Inc.) tried to get the original singers for a series of songs used in the ads, and as Midler was asked and not available to re-sing her hit song “Do You Want to Dance,” her long-time backup singer Ula Hedwig was hired to recreate Midler’s song. In this case, Young and Rubicam DID hold a license from the copyright owners to use the song itself, but the issue was the mimicking of Midler’s actual voice. Never did the commercial make reference to Midler (by using her name or picture). But, to the untrained, consumer ear, it might as well have been Midler singing.
The court ruled: “Mere imitation of a recorded performance would not constitute a copyright infringement even where one performer deliberately sets out to simulate another’s performance as exactly as possible.”
Though this example is a bit different than one which re-composes a song to sound nearly identical to a popular song (to avoid licensing fees), the question of mimicking almost to the point of copying is an interesting one. Does anyone know anything more about sound-alikes? Do you think this Hollywood convention is protected under copyright law? From my knowledge, it doesn’t seem like too many lawsuits have been filed against studios for sound-alikes, so perhaps it isn’t even a big deal to most music industry people. Though it does seem strange that music big-wigs would be upset about sampling 5 seconds of a song for use in a completely new song when the film industry is essentially ripping off the entire feel of a song (or voice) to trick the viewer into thinking they’re hearing the original. Thoughts?
In my Journalism Ethics and First Amendment class, we talked about this case. This type of sound-alike case actually falls under the appropriation tort as part of privacy law.
Appropriation is defined as use of a person’s name, likeness or identity for trade or advertising purposes without consent. Bette Midler sued the Ford Motor Company for appropriation and won because her voice (which is her defining feature) was initially copied and used for the profit of Ford. Another very interesting appropriation case is Vanna White v. Samsung that used a robot who dressed in a blond wig and evening dress and turned letters as part of an advertisement (http://www1.law.umkc.edu/Faculty/levit/DefamationPrivacy/spring08/WhitevSamsung.pdf). Vanna White sued for appropriation since she is known for her role as letter turner on Wheel of Fortune. Other factors involved in this case included parody and right to publicity. White received summary judgment under the right to publicity portion of the law, not for appropriation.
In any event, I never actually considered this sort of case from the perspective of copyright. You bring up an interesting point in which the words of the song are not being copied, but the likeness of the singer is the actual point of contention. Using 5 seconds of a song for remixing doesn’t seem so bad after stealing the likeness of a person’s defining characteristics.
Okay, so I don’t have anything intellectually stimulating to say, but I had to comment on how absurd this is. I knew there was a Right of Publicity, but going as far as having a likeness in voices? While I understand that her unique voice is what brings in money, I think suing for sound-alikes is a bit extreme. What next, people suing for someone stealing a hairstyle?
If that were the case, Kate Gosselin could have a field day with the Halloween wigs featuring her signature hairstyle…
I like the Avatar 3D film, especially the story line, not solely it brings a very new feelings but eye opening thoughts of humanity. I heard the New Avatar 2 is comming soon, cannot wait to watch it again…!
This is really attention-grabbing, You’re an excessively professional blogger. I have joined your rss feed and look forward to looking for extra of your wonderful post. Also, I have shared your web site in my social networks