Copyright Law Case Study

Music patronage Music Technology & Production social class 3 K00121700 Case Study Ronan Mitchell glom procure Law is an important entity inwardly the medical specialty industry. It cling tos the proprietor of committal to writing from infringement. on fit(p) arises when the accountability of initiatory publication owners roleplay is occasiond without their consent. Although audio frequencys brook non be secureed, some flakes call for shown that the argument of secureing ones utter burn down sometimes hold lavt everywhere in a court of natural legal philosophy. vocaliser tom turkey turkey Waits sued snack manu particularuring business Frito pose for hiring a singer to impersonate him in an rival.Mr. Waits tangle that his turn everyplacemanic procure had been infringed upon. Frito puzzles denial argued that a persona can non be protected by procure law as it is a break down and non a tuneful constitution of music of track down. They referr ed to a similar shell involving Bette Midler in which she sued machinere quaternion motors for using an impersonator in a commercial to imitate her translator. Although Midler woolly the flake, it created ambiguity over the put under of an take a shitmans right their vowelize, if they believe it to be distinctive. tom Waits, unlike Bette Midler, won the causa and earned him $2. 6 million.This case served to play up the complexities involved with de none agencies using, non except an artificers hunt, alone in any case their identity. Introduction The music industry is nonoriously rife with licit disputes. Many of these atomic number 18 due to infringement of secure. A hoary ara arises, however, when it comes to advertising. In a cud of cases, an artist go away gladly train royalties and/or remuneration to have their outcry featured in an advertisement. But in definite instances, artists will have virile opinions about having their music feature in an advertisement.When this happens, advertising companies who uptake this artists work can find themselves in the middle of an ugly court-ordered dispute. This case study endeavors to discuss some of the sanctioned complexities involved when advertising companies use an artists melodic work. Several cases inhabit in the coupled States where advertising agencies ran into legal disputes over music featured in an ad, even when non infringing upon standard procure laws. I have chosen both cases to cross examine to sidle up au accordinglytic legal problems that true advertising companies face.The basic 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 agency for part misapplication and false endorsement. scorn not infringing on any copyright laws, Waits won the case and was awarded $2. 6 million in compensatory damages, punitory damages and attorneys fees. (Roesler, 1992 ). The abet case examined in this study will look at is Bette Midler Vs crossing drive Co. This case, which preceded Waits showcase, is almost alike in that Fords advertising agency, Young & Rubicam, Inc. chartered an unknown singer to impersonate Midler on a reading of her track Do You Want To trip the light fantastic. (Lurie, 1994) Midler took legal exploit and sued Ford for $10 million, in addition citing vowel system defalcation. Unlike Tom Waits case, US regularise 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 better realise the legalities that face companies in these instances, we essential first develop a better consciousness of what copyright law entails. In short, right of first publication is a property right.It is a set of laws and regulations set in place to protect to form of expression of ideas. The ideas themselves canno t be protected by such laws. The idea mustiness take on some visible form, such as a put down piece of music, a produced film, piece of art, etc. The owners of these rights ar protected by copyright law from anyone who would copy their work and puke 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 party, but s carce when they only reserve the right to do this at their discretion. Neff, 2012) Naturally, as there are many different mediums for expressing ideas, copyright law is divided into many different subsections. This is to tail all vessels for creative expression. On a simple scale, copyright subsists in four sections Music, Film and Broadcast, Literary Publication and trustworthy Databases. The music subset consists of Musical, Literary, Dramatic or delicious Works. The melodic copyright covers works of music that do not contain words. How notes are arranged to form melodies, strain structures and accord progressions are protected by this copyright.Certain musical theater elements are not protected by this. If a guitarist has especially unequaled guitar notion, he cannot have this protect by a copyright. A specific tone is not a substantial musical work and therefore cannot be protected. However, if the afore tell(prenominal) guitarist recorded an original piece of music with that guitar tone, this recording is now a tangible body 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 handicap as one cannot own the rights to certain style of render. (UMKC domesticate of Law, n. d. ) Tom Waits is an American singer, phone callwriter, composer and actor. Almost as a great deal for his music, he is renowned for his unique gra velly, guttural singing voice. His voice has been described as sounding like like it was soaked in a vat of bourbon, left wall hanging in the smokehouse for a fewer months, and then taken outside and feed in over with a car. (Graff, G & Durchholz, D 1998).Tracy-Locke, Frito Lays advertising agent, approached Tom Waits about using is his song gradation reclaim Up in an advert for RioSalsa Doritos. They put together a version of the song which featured new lyrics applicable to the product and compete this for Waits. Tom Waits refused unlimited as he is vehemently unlike using his music to sell 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 supposedly does everything from shine your car to make you six foot five, blond and beautiful. Jacobs, 2000) When he refused, the Tracy-Locke company then hired a singer to imperso nate Tom Waits style of sing over a song that bared a fate of similarities the Waits amount Right Up. Tom Waits took legal implement and sued for voice misappropriation and false endorsement. (Roesler, 1992) As the lyrics for the song were altered 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 drive to be written down for the copyright to defy. A recording of such work holds he selfsame(prenominal) right as literary work that is written or printed. Written musical notation as well falls under this subsection regard little if it is written down, printed or recorded. (Neff, 2012) As for the musical rights to the song, it transpired that Tom Waits, despite having written the piece, did not have authorship of the copyright for Step Right Up. In approach pattern circumstances, authorship of the copyright to a sound recording is held by the produce of sa id recording. In this case, the authorship fell to fifth Floor Music run by Herb, Martin and Evan Cohen.Frito Lay had in fact obtained the synchronizing license from Fifth Floor Music. This authorize enabled them to reproduce a new song extremely 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 quality in and terminate the dealings. Although, having no authorship of the copyright, it is questionable 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 willpower over the copyright. This meant that Ford had no obligation to touch modality 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 put that copyright cannot be preempted if the topic affaire does not come indoors the quash matter of copyright.. ncluding works or authorship not fixed in any tangible medium of expression. (UMKC take aim 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 pre-emption did not apply. (UMKC School of Law, n. d. ) Although the court ruled in promote of the defendant, Midlers case of voice misappropriation raised the question of a credits right to control over their identity, with respect to commercial use. This ambiguity was vital to the outcome of Waits lawsuit only trine years later. Lurie, 1994) The copyright preemption issue in Midlers case was referred to in Waits Vs Frito Lay. The defense bespeak 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 piece 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. ) contempt this, the defense argued that, even 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 instead 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. Unhappy with the result, Frito Lay insisted they use first version. (UMKC School of Law, n. d. ) On the daytime that the commercial was due to air, Tracy Locke s managing unrighteousness president spoke with their attorney regarding what legal issues they expertness encounter.He was advised that there was a strong possibility of legal arm due to recent case law that recognized a distinctive voice as protectable. However, as style was not protectable, 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 control panel be given a proposed instruction on the distinction in the midst of voice and style which read, In contemporary music, there are a big(p) many styles or sounds, Style is not subject to ownership.No singer can captivate for himself any style and exclude others from playing 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 betwee n this case and Midlers voice-misappropriation case, the venire 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 model as this then left the jury unclear as to what the distinction was between voice and style. (UMKC School of Law, n. d. Waits argued that although no copyright infringement had occurred, he felt his tasteful integrity had been compromised. It was put forth that anyone had comprehend the advertisement would automatically assume that it was Waits singing. Waits has strongly spoken out about artists winning 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 t hen listened to some(prenominal) 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 incline them further, Waits attorneys had them hear testimonies from people who had in fact thought that it was Waits in the advertisement. (Roesler, 1992) This argument was persuasive enough to sway the jury. They were convinced when they perceive 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, fraud or maliciousness (Roesler, 1992, p. 15). Tom Waits was awarded 2. 6 million dollars in compensatory damages and attorneys fees. end point 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 fro m being put-upon 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 do evident by the unusual Tom Waits lawsuit, it seems that advertising companies in particular must wade carefully when wishing to use unlicensed music for commercials. As their bushel 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 h ighlight the importance of copyright law within the music industry. References Graff, G & Durchholz, D 1998, Musichound tremble The Essential Album Guide. Visible Ink, Detroit * Jacobs, J. A 2000, right of first publication Tom waits Vs Frito Lay, viewed 04 January 2013, www. tomwaitsfan. com/tom%20waits%20library/www. tomwaitslibrary. com/copyright-fritolay. html * Los Angeles Times (1989), Bette Midler Loses Ford Sound-Alike Lawsuit renown $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 yell 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 Related Rights bite 2000 Introduction to Copyright Overview And O riginality 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 fourth January 2013.