“You Wouldn’t Get This From Any Other Guy”

On January 26, 2023, Rick Astley filed a lawsuit in Los Angeles Superior Court against rising-star rapper Yung Gravy; producers Popnick, Dillon Francis, and dwilly; as well as Republic Records.  Astley alleges that, although defendants had permission from the songwriters to make the track, Yung Gravy violated his right of publicity and falsely implied that Astley endorsed the track.

How can there be a lawsuit if the songwriters told Yung Gravy he could use the song? What is a “right of publicity” and how does it differ from copyright?

“Gotta Make You Understand” (Music Has Two Different Copyrights)

Although copyright infringement is not a cause of action alleged by Astley, it is essential to have a basic understanding of the different copyrights available within a song to understand the case.

Every piece of recorded music has two separate copyrights: one for the composition (what the song would look like on sheet music) and one for the sound recording itself. In this case, Astley did not write “Never Gonna Give You Up,” but he did lend his vocal performance to the famous sound recording. Songwriters or publishing companies typically own the composition copyright, while record labels or the artists themselves typically own the sound recording copyright.

A musician wanting to include a song within another, separate song has options depending on which copyright owner approves. If both the songwriters/publisher and recording artist/record label of the original song approve, the user can “sample” the song, meaning use the original recording. Samples are common in hip-hop.,  “Stronger” by Kanye West uses a slowed-down sample from Daft Punk’s “Harder, Better, Faster, Stronger” (which is itself a sample) and “First Class” by Jack Harlow samples Fergie’s “Glamorous.” On the other hand, if all that is available is the permission of the songwriters/publisher, the user can do an “interpolation” of the song, meaning the song features musicians re-recording a composition.  Interpolations are far more common in pop music— Eifel 65’s “Blue (Da Ba Dee)” has been interpolated in at least three popular songs in the past 15 years, most recently in “I’m Good” by Bebe Rexha and David Guetta.

In this case, Gravy was apparently only able to obtain the permission of the writers of the song (even though his team allegedly attempted to “clear the sample”) and had to limit himself to an interpolation. Although Gravy may not have violated copyright law, the real question is whether he violated Astley’s right of publicity.

“Don’t Tell Me You’re Too Blind To See” (Rights of Publicity)

A person’s “right of publicity” is their right to control the commercial use of their name, image, or likeness. “Name, image, or likeness” has a broad definition, and even covers the distinctive looks of a professional driver’s car. Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 921 (9th Cir. 1974).

A person’s voice falls within the right of publicity—particularly if their voice is  very distinctive and easily recognizable. Several cases have extended this to “sound-alikes” including Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1989) and Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992). In each of these cases, a celebrity with a distinctive voice (Bette Midler and Tom Waits, respectively) received large sums of money ($400,000 for Midler and $2,500,000 for Waits) because a company hired a sound-alike to imitate their voices in a commercial to sell a product. Astley cites Midler v. Ford Motor Co. in his Complaint.

”We Know The Game and We’re Gonna To Play It”: What The Complaint Says

Astley’s complaint opens dramatically with “A voice is as distinctive and personal as a face. The human voice is one of the most palpable ways identity is manifested.” The Complaint continues: “[t]he singer manifests themselves in a song. To pirate their voice is to pirate their identity…Defendants have literally stolen Plaintiff’s voice causing immense damage.”

It is alleged that ”[i]n an effort to capitalize off of the immense popularity and goodwill of Mr. Astley,” Defendants created and released “Betty (Get Money)” to include “a deliberate and nearly indistinguishable imitation of Mr. Astley’s voice throughout the song.” Astley alleges that this was a deliberate theft of his voice because the defendants were admittedly unable to obtain a license for a sample from the sound recording of ‘Never Gonna Give You Up.’

According to the Complaint, Yung Gravy posted online that his team had, “literally been trying to clear the sample [of “Never Gonna Give You Up”] for years lol.” When he was unable to clear the sample, Gravy and his producers “basically remade” “Never Gonna Give You Up” to sound like a vocal sample of the original song, “because it makes it easier legally.” Producer Popnick said that he remade the song “from the ground up to sound identical to the original recording.” After auditioning several Astley sound-alike singers , Popnick decided to imitate Astley’s vocals himself. Popnick even asked in an online post if listeners could tell the difference.

Astley claims that, “the public believed it was actually Mr. Astley singing and/or a direct sample” of “Never Gonna Give You Up.” Gravy allegedly aided this confusion by saying in interviews that Astley approved of and is a fan of the song.

“You Know the Rules, and So Do I”: Problems With Astley’s Theories

The Complaint cites several online sources claiming that Gravy “sampled” Astley in “Betty (Get Money).” These claims are more likely than not based on an incorrect understanding of the difference between sampling and interpolation. In other words, these online authors may be more confused about copyright law than whether “Betty (Get Money)” actually features Astley’s real voice.

Additionally, Gravy may be entitled to more First Amendment protection than in the Midler and Waits cases. A Court could find this case is closer to Hoffman v. Cap. Cities/ABC, Inc., which held that the use of a celebrity in a magazine photo parody was non-commercial expressive speech and entitled to more protection under the First Amendment. 255 F.3d 1180 (9th Cir. 2001). Specifically, the celebrity could only prevail if he proved that their name was used with “actual malice” or “reckless disregard for the truth,” and that the totality of the presentation, “would inform the average reader (or the average browser)” that they had participated in the photograph. The Court ultimately found that the magazine did not act with malice intending to mislead its readers into thinking that celebrities posed for the photos—even though the magazine “never explicitly told its readers that the living actors did not pose for the altered photographs in the article.”

There are two parts of “Betty (Get Money)” that sound close to Astley’s voice: the first ten seconds of the song where Popnick sings the chorus from “Never Gonna Give You Up” and the post-chorus repetition of “Get Money.” According to Hoffman, the question would be whether these parts were created with the intention to deceive listeners into believing that Astley participated in the creation of the song. This may prove to be an uphill battle given the protections that the First Amendment gives to creative works.

Finally, some (or all) of Astley’s causes of action may be preempted by the Copyright Act. Section 114(b) of the Copyright Act  states that the owner of a sound recording does not have the exclusive right to make, “another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.” 17 USC 114(b). This means that it is not a violation of Astley’s ownership of his vocal performance to create another sound recording imitating it—at least in terms of copyright law. The question then becomes whether this statute prevents causes of actions that are not actually based in copyright law, like Astley’s.

Astley’s counsel would likely point to the Midler and Ford cases, both of which held that sound-alike right of publicity lawsuits are not preempted if the singer is suing for the use of their voice in general, rather than the use of their voice in a specific song—an imitation of the singer’s overall identity through their voice rather than an imitation of the singer’s performance on a recorded song. Arguably, Astley is complaining of the similarities to his iconic vocal performance on “Never Gonna Give You Up.” Perhaps the fact that many people only know Astley for his vocal identity on this one song supports the argument that this lawsuit is preempted by copyright law.

”Never Gonna Tell a Lie and Hurt You”: What this may mean for music creators

Regardless of the possible weaknesses in the case, the fact that this lawsuit was brought at all may have ripple effects on song creators and the companies that fund them.

Nostalgia is a powerful drug. Although sampling and interpolations have been around for a while, recent trends in music seem to be drawing inspiration from previously made songs at a higher rate. Billboard appears to believe that this lawsuit may spell an end to pop music’s recent “nostalgia kick,” as music industry executives say that it could “scare creators and hinder creativity in sampling, covering and interpolating.”

This may also provide another hurdle for individuals looking to cover a song. Although not always the case, many musicians may try to mimic the distinctive style of the original vocalist when performing a cover. While you do not need permission from either the original performer or the songwriter  in order to cover an existing composition (compulsory licenses under 17 USC 115), singers may now have to worry about their vocal stylings sounding too much like the initial singer. Could a singer who sounds too similar to another be at risk of a similar lawsuit as Yung Gravy?

NEXT STEPS?

Astley’s attorney in this case is Richard Busch, famous for obtaining victory for the estate of Marvin Gaye in the “Blurred Lines” lawsuit. Gravy has yet to answer, but only time will tell how far this case will go. It is likely that Gravy and Co. will respond with either a motion to dismiss (known as a demurrer in California) or an anti-SLAPP (strategic lawsuit against public participation) motion. If Gravy files the latter, Astley may be at risk of showing that he will prevail on his claim or risk having his suit dismissed and having to pay defendants’ attorneys’ fees.