Copyright Law Case Study

Music Business Music engine room & antiophthalmic factor Production Year 3 K00121700 Case Study Ronan Mitchell everywherecharge secure Law is an important entity within the medicament industry. It cling tos the proprietor of report from usurpation. Infringement arises when the procure give birthers take a shit is functiond without their consent. Although sounds preempt non be copyrighted, some baptistrys have shown that the argument of copyrighting ones function can sometimes hold weight in a courtroom of practice of lawfulness. vocalizer tom turkey Waits sued snack manu concomitanturer Frito Lay for hiring a singer to flummox him in an advert.Mr. Waits felt that his mechanicic copyright had been infringed upon. Frito Lays demurrer argued that a articulation cannot be hold deared by copyright law as it is a sound and not a tuneful subdivision of field of study. They referred to a similar campaign involving Bette Midler in which she sued carrefour motors for using an imitator in a technical to imitate her voice. Although Midler lost the sideslip, it created ambiguity over the issue of an artificers right their voice, if they believe it to be distinctive. tomcat Waits, un desire Bette Midler, won the causal agent and earned him $2. 6 million.This case served to cozy up the complexities involved with announce agencies using, not only an artists work, scarce to a fault their identity. Introduction The music industry is notoriously rife with juristic disputes. M each of these atomic number 18 due to infringement of copyright. A grey discipline arises, however, when it comes to advertising. In a dish up of cases, an artist will gladly have got royalties and/or remuneration to have their rime feature in an advertisement. and in certain instances, artists will have strong opinions nigh having their music feature in an advertisement.When this happens, advertising companies who use this artists work can find themselves in t he middle of an ugly levelheaded dispute. This case study endeavors to discuss some of the lawful complexities involved when advertising companies use an artists musical comedy work. Several cases exist in the fall in States where advertising agencies ran into effective disputes over music featured in an ad, withal when not infringing upon standard copyright laws. I have chosen cardinal cases to cross examine to highlight certain legal problems that certain advertising companies face.The first case examined for this study is turkey cock Waits Vs Frito-Lay, Inc. In this case tom Waits sued the Frito-Lay snack manufacturer and their advertising theatrical for voice misappropriation and nonsensical endorsement. patronage not infringing on any copyright laws, Waits won the case and was awarded $2. 6 million in compensatory regaining, punitive damages and lawyers fees. (Roesler, 1992). The second case examined in this study will look at is Bette Midler Vs Ford Motor Co. This case, which preceded Waits lawsuit, is almost identical in that Fords advertising agency, Young & Rubicam, Inc. hired an unknown singer to puzzle Midler on a fluctuation of her track Do You Want To leap. (Lurie, 1994) Midler took legal action and sued Ford for $10 million, also citing voice misappropriation. conflicting Tom Waits case, US District Judge A. Wallace Tashima ruled against Midler, stating that the evidence presented wasnt sufficient and that a voice is not a copyrightable entity (Los Angeles Times, 1989) Study To wagerer understand the legalities that face companies in these instances, we must first develop a better understanding of what copyright law entails. In short, Copyright is a property right.It is a set of laws and regulations set in place to protect to form of feel of compositions. The ideas themselves cannot be protected by such laws. The idea must take on some tactile form, such as a recorded piece of music, a produced film, piece of art, etc. The possessors of these rights argon protected by copyright law from anyone who would copy their work and spue it for their own monetary gain without the owners express permission. It is the owner of the copyright who may authorize the use of their work by another(prenominal) party, but only they only reserve the right to do this at their discretion. Neff, 2012) Naturally, as there are many another(prenominal) different mediums for expressing ideas, copyright law is divided into many different subsections. This is to cover all vessels for creative expression. On a simple scale, copyright subsists in four sections Music, Film and Broadcast, literary Publication and Original Databases. The music subset consists of Musical, Literary, Dramatic or Artistic Works. The musical copyright covers whole shebang of music that do not contain words. How notes are arranged to form melodies, call structures and chord progressions are protected by this copyright.Certain musical elements are not pro tected by this. If a guitarist has particularly unique guitar tone, he cannot have this protect by a copyright. A specific tone is not a tactual musical work and therefore cannot be protected. However, if the same guitarist recorded an master key piece of music with that guitar tone, this preserve is now a clear torso of work and can be protected by musical copyright. It is the music itself that is protected. Not the sound. (Neff, 2012) This is a particularly interest element of Tom Waits lawsuit against Frito-Lay.The defendants argued that the voice misappropriation case was invalid as one cannot own the rights to certain air of singing. (UMKC School of Law, n. d. ) Tom Waits is an American singer, songwriter, composer and actor. Almost as much for his music, he is renowned for his unique gravelly, guttural singing voice. His voice has been described as sounding like like it was soaked in a vat of bourbon, left hanging in the smokehouse for a few months, and thus taken outs ide and break over with a car. (Graff, G & Durchholz, D 1998).Tracy-Locke, Frito Lays advertising agent, approached Tom Waits about using is his song Step Right Up in an advert for RioSalsa Doritos. They put together a version of the song which featured new lyrics relevant to the product and played this for Waits. Tom Waits refused outright as he is vehemently opposed using his music to betray products. It was interesting that they chose that particular song, as the lyrics are a satirical indictment of advertising. The song features advertising slogans used sarcastically to describe a product that purportedly does everything from shine your car to make you six foot five, blonde and lovely. Jacobs, 2000) When he refused, the Tracy-Locke company then hired a singer to beat Tom Waits style of sing over a song that expose a lot of similarities the Waits Step Right Up. Tom Waits took legal action and sued for voice misappropriation and false endorsement. (Roesler, 1992) As the lyrics for the song were alter to suit the ad, Waits literary copyright was unaffected. The literary copyright pertains to a work of words which are written, spoken or sung. This work does not specifically need to be written down for the copyright to apply. A recording of such work holds he same right as literary work that is written or printed. Written musical notation also falls under this subsection regardless if it is written down, printed or recorded. (Neff, 2012) As for the musical rights to the song, it transpired that Tom Waits, scorn having written the piece, did not have composing of the copyright for Step Right Up. In normal circumstances, physical composition of the copyright to a sound recording is held by the produce of say recording. In this case, the authorship fell to ordinal Floor Music run by Herb, Martin and Evan Cohen.Frito Lay had in fact obtained the synchronisation license from Fifth Floor Music. This licence enabled them to reproduce a new song super similar, albeit not identical, to Step Right Up to which the new jingle lyrics were added. Tom Waits was unaware of this so was unable to step in and terminate the dealings. Although, having no authorship of the copyright, it is marvelable as to whether or not this would have had any sway in the proceedings at all. (Jacobs, 2000) Similarly, in Bette Midlers case, like Waits, Midler was not the owner of the copyright.She did not write the song nor did she pen the lyrics. Ford Co. bought the rights the song Do You Want To Dance from the publishing company that had will power over the copyright. This meant that Ford had no obligation to contact Bette Midler with regards to their intentions to use the song for their commercial. (Lurie, 1994) Since Midler had no ownership rights, the defense argued that her voice misappropriation was preempted by the copyright act. However, this was rejected as they found that copyright cannot be preempted if the exit motion does not come within the subject matter of copyright.. ncluding works or authorship not fixed in any tangible medium of expression. (UMKC School of Law, n. d. ) It was decided that, since it was not possible to copyright a particular sound (like that of the guitar tone), the voice was not suitable copyright subject matter. Thus, copyright preemption did not apply. (UMKC School of Law, n. d. ) Although the court ruled in favor of the defendant, Midlers case of voice misappropriation raised the question of a celebritys right to control over their identity, with venerate to commercial use. This ambiguity was vital to the outcome of Waits lawsuit only triple years later. Lurie, 1994) The copyright preemption issue in Midlers case was referred to in Waits Vs Frito Lay. The defense requested that, since Tom Waits was not the lawful owner of the music copyright, the preemption of copyright law did not apply in this instance as it had with Midler. Waits case was not for infringement of a tangible copyrightable p iece of work, but for infringement of voice. Again, voices are merely sounds and sounds are not protected by copyright law. (UMKC School of Law, n. d. ) Despite this, the defense argued that, tied(p) though they had copied Waits musical style, they did not imitate his voice.This was found to be untrue, however. It transpired that Tracy-Lockes executive producer was quite concerned with the legal implications of their singers striking similarity to Waits voice. He requested that they record another version of the jingle asking the singer to sing less like Waits. sad with the result, Frito Lay insisted they use first version. (UMKC School of Law, n. d. ) On the day that the commercial was due to air, Tracy Lockes managing vice president spoke with their attorney regarding what legal issues they might encounter.He was advised that there was a strong possibility of legal ramification due to recent case law that recognized a distinctive voice as protectable. However, as style was not p rotectable, their attorney informed them that the case might hold no merit. (UMKC School of Law, n. d. ) Despite the warning, Frito Lay chose the version that imitated Tom Waits distinctive voice. It was proposed that the jury be tending(p) a proposed information on the distinction between voice and style which read, In contemporary music, there are a great many styles or sounds, Style is not subject to ownership.No singer can detach for himself any style and exclude others from performing in the same style. any singer is free to sing in the same style. (UMKC School of Law, n. d. ) This instruction was rejected by the district court. Given that there were a lot of similarities between this case and Midlers voice-misappropriation case, the jury was asked to decide whether or not they found Waits style to be distinctive. The defense argued that the omitted instruction was an error in judgment as this then left the jury unclear as to what the distinction was between voice and styl e. (UMKC School of Law, n. d. Waits argued that although no copyright infringement had occurred, he felt his artistic haleness had been compromised. It was put forth that anyone had perceive the advertisement would automatically assume that it was Waits singing. Waits has strongly spoken out about artists taking money to allow their music to be used to sell product. He felt that, as the Doritos advertisement jingle sounded identical to his voice and musical style, that his fans would assume he participated in the advertisement and had willing endorsed the product. This, he asserted, was damaging to his reputation and his career as an artist. UMKC School of Law, n. d. ) The jury then listened to several of Tom Waits songs to determine both his musical and vocal style. The court then played them the Doritos advertisement in question for comparison. To convince them further, Waits attorneys had them let out testimonies from people who had in fact thought that it was Waits in the adv ertisement. (Roesler, 1992) This argument was compelling enough to sway the jury. They were convinced when they heard to advertisement and the testimonies that, despite the fact that no copyrightable material had been infringed upon, Waits artistic integrity had been compromised.The jury found that the defendants had acted with oppression, mockery or malice (Roesler, 1992, p. 15). Tom Waits was awarded 2. 6 million dollars in compensatory damages and attorneys fees. Conclusion In conclusion, we can see from the above cases that copyright is a bastion for musical artists. They help to protect an artists right to their work and a right to their form of expression from being exploited by large companies and advertising agencies who can sometimes try to profit from their work.Although, as they are vital to protecting an artists creative work, we can also seen from the cases studied that they can protect much more than that. Technically, in the eyes of the law, only a tangible body of work can by protected by these rights. However, as this study has shown, in certain rare cases, these rights can be manipulated to encompass, not only an artists work, but their identity, persona and artistic integrity when exploited.As made evident by the unusual Tom Waits lawsuit, it seems that advertising companies in particular must wade carefully when wishing to use unlicenced music for commercials. As their sole intention is for making money, they can be looked at very callously by court jury. Thus, certain unscrupulous can land in a lot of trouble despite not infringing on a copyrighted piece of work. Although situations such as this are quite unusual, they highlight the importance of copyright law within the music industry. References Graff, G & Durchholz, D 1998, Musichound Rock The Essential album Guide. Visible Ink, Detroit * Jacobs, J. A 2000, Copyright Tom waits Vs Frito Lay, viewed 04 January 2013, < www. tomwaitsfan. com/tom%20waits%20library/www. tomwaitslibra ry. com/copyright-fritolay. hypertext markup language> * Los Angeles Times (1989), Bette Midler Loses Ford Sound-Alike Lawsuit Celebrity $10-million suit over TV car commercial is dismissed but action against the ad agency is allowed to stand, viewed 06 January 2013, http//articles. atimes. com/1989-10-27/business/fi-901_1_bette-midler * Lurie, K. (1994) Waits v. Frito-Lay The Song Remains the Same.. Cardozo Arts & Ent. LJ, 13, 187. , available at http//heinonline. org/HOL/LandingPage? collection=journals&handle=hein. journals/caelj13&div=26&id=&page= Accessed 6th January 2013. * Neff, F. 2012, Copyright and think Rights Act 2000 Introduction to Copyright Overview And Originality in Copyright, * Neff, F. 012, Authorship and Ownership of Copyright Copyright and Related Acts 2000 Sections 21 to 23, * Roesler, M. (1992) Waits v. Frito Lay,. 978 F. 2d 1093 (9th Cir. 1992), Available at http//www. markroesler. com/pdf/caselaw/Waits%20v. %20Frito-Lay%20Inc. %20_1992_. pdf Accessed 6th January 2013 * University of moment Kanas City School of Law (1992) Waits v. Frito Lay, Inc. United States Court Of Appeals For The Ninth Circuit, Available at http//law2. umkc. edu/faculty/projects/ftrials/communications/waits. html Accessed 4th January 2013.