Thursday, May 25, 2006
Tort Claims of Artist Whose Work Was Used for Lopez Song Held Preempted by Copyright Act
By a MetNews Staff Writer
The state law “right of publicity” claims of a recording artist who gave her record company the sole and exclusive copyright to a song recording, which was later licensed without her authorization to another record company, were preempted by the Copyright Act, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The court affirmed a grant of summary judgment by U.S. District Judge Lourdes G. Baird, who has since retired, in favor of Sony Music Entertainment, dismissing recording artist Debra Laws’ 2003 misappropriation suit.
Laws brought suit seeking injunctive and monetary relief against Sony in response to its use of the 1981 Elektra Records recording of her song “Very Special.” Sony used samples of Elektra’s “Very Special” master recording in its 2002 recording of the song “All I Have” by Jennifer Lopez and L.L. Cool J. “All I Have” turned out to be a nationwide hit.
Sony’s usage of “Very Special” in the hit song was not authorized by Laws but was pursuant to a license Sony obtained from Elektra, to which Laws had given the exclusive copyright and licensing rights for the master recording of the song.
The appellate panel, referring to Laws’s state claims of common law invasion of privacy claim and misappropriation as “right of publicity” claims, concluded that the master recordings of “Very Special” fell “plainly” within the subject matter of the Copyright Act.
Writing for the court, Judge Jay S. Bybee said, “Laws...contends that the subject matter of a copyright claim and a right of publicity claim are substantively different. She argues that a copyright claim protects ownership rights to a work of art, while a right of publicity claim concerns the right to protect one’s persona and likeness.”
However, the judge said, “Sony obtained a license to use Laws’s recording itself. Sony was not imitating ‘Very Special’ as Laws might have sung it. Rather, it used a portion of ‘Very Special’ as sung by Debra Laws. … [W]e think it is clear that federal copyright law preempts a claim alleging misappropriation of one’s voice when the entirety of the allegedly misappropriated vocal performance is contained within a copyrighted medium.”
Further, Bybee concluded, the state law rights of privacy that Laws asserted were equivalent to the rights protected under the Copyright Act. In order to survive preemption, a state cause of action must contain an extra element that makes it qualitatively different from a copyright infringement claim, the judge said.
Laws’ claims failed to meet this requirement, Bybee concluded.
“The essence of Laws’s claim is, simply, that she objects to having a sample of ‘Very Special’ used in the Jennifer Lopez-L.L. Cool J recording,” he explained.
He clarified that not every right of publicity claim is preempted by the Copyright Act. But he also emphasized that the right of publicity should not be used to limit the rights of a copyright holder “merely because one disagrees with decisions to license the copyright.”
Bybee wrote, “Were we to conclude that Laws’s voice misappropriation claim was not preempted by the Copyright Act, then virtually every use of a copyrighted sound recording would infringe upon the original performer’s right of publicity.”
Laws failed to protect herself by retaining the copyright to the “Very Special” recording or reserving contractual rights in Elektra’s use of it, the judge observed. To the extent she is entitled to a remedy, Bybee reasoned, it would be in a contract action against Elektra and not a tort action against Sony.
The case is Laws v. Sony Music Entertainment, Inc., 03-57102.
Copyright 2006, Metropolitan News Company