copyright

Copyright Confrontation: Rick Astley Will Not Give Up His Voice

By Harrison Gregoire

Rick Astley is a seminal British figure and a cultural icon. Through his music, Astley has provided an antidote to quotidian drudgery, has served as a bulwark against musical deprivation, and has protected against degradation in modern music. “Never Gonna Give You Up,” Astley’s signature song, is an eternal global anthem, enthralling and captivating audiences since the close of the 1980s. As described in the London periodical Time Out: “Those synthesized strings, that thumping boots-and-pants beat, Astley’s weirdly robust croon and his romantic-wooing-as-used-car-salesman pitch (‘You wouldn’t get this from any other guy’) … It all adds up to three-and-a-half of the most effervescent minutes in the ’80s canon.”[1] Doubtless, Mr. Astley’s significant contribution to the cultural zeitgeist has exposed him and his creative output to plenty of imitators. Now, Mr. Astley and the entire musical industry must confront a difficult copyright question.

In the song’s refrain, Astley unequivocally professes his loyalty and affection to the unnamed subject: “Never gonna give you up, never gonna let you down.”[2] Those words were especially prescient: in his newly filed copyright suit, he implores the court to “never give up” copyright protection of his golden pipes and family-oriented reputation.

The offending song “Betty (Get Money)” was released June 10, 2022, as the lead single of Minnesota rapper Yung Gravy’s third studio album, Marvelous. “Betty”,unfortunately, is a vacuous, ham-fisted, and insipid counterfeit of the brilliant “Never Gonna Give You Up”. Gravy’s “Betty”fails not for a lack of swagger, but for a lack of creativity. The writing team relied on the “immense popularity and goodwill of Mr. Astley,” such that itspredecessor and template would propel it to commercial success.[3]

Yung Gravy fugues between his own voice and his producer’s, Popnick, who recreated Astley’s original voice “from the ground up” to ensure nearly perfect imitation. Modern music production, through track editing and other vocal effects, empowered the Defendants to create a virtually indistinguishable copy of Mr. Astley’s “Never Gonna Give You Up.”  

One of Mr. Astley’s primary arguments is that the public was widely misled to believe that Mr. Astley sang or was directly sampled on “Betty (Get Money)”. Mr. Astley’s complaint cites prominent culture sites which wrote that it was Mr. Astley himself on the track, evidence that a substantial portion of the public was under the impression that Mr. Astley and Mr. Gravy had collaborated on the song.

The complaint concedes that Mr. Gravy obtained a license to use the “underlying musical composition” of “Never Gonna Give You Up”. Conversely, however, Mr. Gravy’s attempts to secure Mr. Astley’s voice on the track were fruitless. A license to interpolate the original underlying musical composition does not authorize use of the original artist’s voice. Mr. Astley’s permission would be the ultimate prize. Ever since the release of “Never Gonna Give You Up”, its stunning composition and unsurpassed feel-good factor have been the subject of global admiration. Why else would the producers need to imitate Mr. Astley indistinguishably, if not to co-opt that same nostalgia and comfort of the original? They had the rights to the underlying musical composition; this simply was not enough.

The main issue of the case will be the extent of copyright protection for an artist’s voice. Does Mr. Astley’s right to publicity extend to his voice? The court must decide whether Gravy’s vocal imitation rises to the level of commercial exploitation.[4]

Doubtless, an artist with Mr. Astley’s statute and reputation understands the influence of his music and the need to preserve his image. Mr. Astley made a lasting impact on the world of music. With influence come solicitations for collaboration, sampling, and featuring. It is the prerogative of Mr. Astley to protect his voice, image, and likeness. As an influential artist, he and his songs have garnered significant popularity and goodwill around the world. All this to say: Mr. Astley’s voice and reputation are tremendously valuable.

Likewise, Mr. Gravy has captured a global audience. His work often samples older songs: on his 2018 hit “Mr. Clean”, Mr. Gravy included The Chordettes’ “Mr. Sandman” as the primary melody of the song. His formula works: “Betty (Get Money)” has amassed over 181 million Spotify streams. “Mr. Clean” has 229 million streams.

Sampling is often beneficial for new artists and copyright holders alike: the sampling artist integrates the sample into a new song, repackaging the product for an unfamiliar audience. The work is exposed to a new audience, while a licensing agreement or a lump sum compensates the original artist or owner. The rights holder may or may not agree to the request.

Here, however, Mr. Gravy may have gone too far. Instead of respect for the song and the artist, lyrics like “Yeah, Rocking Rick, clapping Astleys like the 80s”[5] and a vocal imitation of Mr. Astley sounding like he sings “get money” are antithetical to the family values of the Brit-pop icon. Imitation, apparently, is not the sincerest form of flattery.

Both parties in this lawsuit have the individual notoriety and influence to create good precedent moving forward. The court should not “let us down” by allowing a counterfeit to appropriate a timeless singer’s voice and reputation.   

[1] Andrzej Lukowski, The 60 best ‘80s songs, Time Out (Aug. 9, 2022), https://www.timeout.com/music/the-50-best-80s-songs.

[2] Rick Astley, Never Gonna Give You Up (RCA 1987).

[3] Rob Arcand, Rick Astley Enlists “Blurred Lines” Lawyer to Sue Yung Gravy Over Vocal Impersonation, Pitchfork (Jan. 27, 2023), https://pitchfork.com/news/rick-astley-enlists-blurred-lines-lawyer-to-sue-yung-gravy-over-vocal-impersonation.

[4] Id.

[5] Yung Gravy, Betty (Get Money), YouTube (June 10, 2022), https://www.youtube.com/watch?v=8oE5Z2GLhNc.

“Blurred Lines” in the World of Copyright: What Does the Latest Appeal Mean for The Music Industry?

By: Caitlin Holland

We have all heard the anecdote that all songs include the same three notes. Musicians often cite the lates and greats as “inspiration” for the latest pop song making the radio rounds. But how far can “inspiration” go before it is considered a crime? How much of a song is copied for it to be considered substantially similar rather than just in the same genre? Where do we draw the line between inspiration and stealing?

In the world of Copyright litigation, the line between inspiration and copying is becoming more and more blurred thanks to a recent decision that is opening the proverbial floodgates of litigation. Famous recording artists who have been parties to copyright infringement claims this year include Robin Thicke and Pharrell[1], Ed Sheeran[2], Sam Smith[3], Hans Zimmer[4], and Led Zeppelin[5].

The litigation of the “Blurred Lines” case between the family of Marvin Gaye, copyright owners of Gaye’s song “Got to Give it Up,” and Robin Thicke, Pharrell and T.I. is probably the most noteworthy. In the highly publicized decision set down last year in California, the damage award set a record high in a copyright case at $7.4 million, reduced to $5.3 million. Most notably, the substantial similarity that lead the judge to rule that there was infringement of Gaye’s copyright was the extrinsic and intrinsic similarities. The test for extrinsic similarities employs expert testimony to determine whether the works share similar expressions. Intrinsic similarity is shown if an ordinary, reasonable listener would conclude that the total concept and feel of the works are substantially similar.[6] In this case the plaintiff’s expert brought forth examples of material appropriated by the “Blurred Lines” creators cited as “the pulse that runs through the song.”[7] The jury made the decision that the “feel” of the two works bore sufficient similarity to conclude that there had been an infringement. [8]

Last month, 200 musicians filed a brief with the Ninth Circuit Court of Appeals expressing their concern about the ruling in the “Blurred Lines” case.[9] The musicians cite a possible chilling effect saying that the ruling could have an “adverse impact on their own creativity, on the creativity of future artists, and on the music industry in general, if the judgment is allowed to stand.”[10] The brief submitted by the artists states that reducing the similarities of the two works to simply a “feel” or “vibe” reduces the copyright to an idea, which is not a copyrightable medium of expression.[11] Rather than on the substantial similarity of the notes, words, and arrangement, the song was found in violation of Marvin Gaye’s copyright based on the stylistic and atmospheric influence.

The verdict in this case has expanded the scope of copyright protection to abstract ideas and feelings, contrary to the very language of The 1976 Copyright Act. If this appeal fails, the 9th Circuit may effectuate an unwelcome change to the music industry as we know it.

 

[1] Williams v. Bridgeport Music, Inc., 2015 U.S. Dist. LEXIS 97262 (9th Cir. 2015).

[2]Musician Ed Sheeran Faces Copyright Lawsuit Over ‘Thinking Out Loud,’ Reuters, Aug. 10, 2016, http://www.reuters.com/article/us-music-edsheeran-lawsuit-idUSKCN10L04X ; Piya Shinha-Roy, Ed Sheeran Faces $20 Million Copyright Lawsuit over ‘Photograph’, Rueters, June 9, 2016, http://www.reuters.com/article/us-music-edsheeran-lawsuit-idUSKCN0YU2R4

[3] Daniel Kreps, Sam Smith on Petty Settlement: ‘Similarities’ But ‘Complete Coincidence,’ Rolling Stone, Jan. 26, 2016,http://www.rollingstone.com/music/news/sam-smith–tom-petty-settlement-20150126

[4]Hans Zimmer Wins Copyright Lawsuit & An Apology, Billboard, Aug. 25, 2016, http://www.billboard.com/articles/news/7487729/hans-zimmer-wins-copyright-lawsuit-apology

[5] Skidmore v. Led Zeppelin, 2016 U.S. Dist. LEXIS 51006 (9th Cir. 2016).

[6] Williams, supra at 52.

[7] Id. at 68.

[8] Id.

[9] More Than 200 Musicians Support ‘Blurred Lines’ Appeal – The Associate Press – http://www.nytimes.com/aponline/2016/08/31/us/ap-us-blurred-lines-song-dispute.html

[10] Brief of 212 Songwriters, Musicians, and Producers as Amici Curiae Supporting Appellants, Pharrell Williams, et al. v. Frankie Christian Gaye, et al., 2015 U.S. Dist. LEXIS 97262 (2015)(No. 15-56880), available at https://pacer-documents.s3.amazonaws.com/3/15-56880/009028333811.pdf.

[11] 17 U.S.C. 106 (1976).