The IdoLawyer Has A Few Words For All You Sha-Na-Na Impersonators Out There

Editor’s note: Aside from a few Clash lyrics, your Idolators know nothing about the law. Which is why we’re proud to present another missive from the IdoLawyer, an anonymous California attorney who will be weighing in on various music-related matters. While her column isn’t intended as legal advice, it is sage advice nonetheless, and today she takes a look at new litigation that attempts to silence musical impersonators:

Some laws remind me of Lily Allen–faddish, silly, unnecessary, but generally unobjectionable. I place the recent spate of “Truth in Music” laws in this category. These laws prevent you from passing your band off as another, more famous band. Ten states have passed anti-impersonation laws, and several more have them in the pipeline. That’s 27 states away from becoming an amendment to the Constitution!^*

As the Los Angeles Times reported, impersonation seems to be a problem for many first-wave “The” bands, such as The Drifters, The Shirelles and The Supremes. These artists, or the people who inherited their rights, worry that impostors are diluting their brand. It’s not clear from the text of the recently passed California litigation what type of punishment fits this particular crime.

But this seems like this problem should be taken care of by false advertising or copyright laws, and in fact that might eventually be an issue when and if these laws are enforced. To the extent pop music can be called “intellectual” property, state laws that make rock stars richer can be struck down if there’s already federal law in the area.

Let’s look at your IdoLawyer’s home state, California. From protecting forest streams to protecting Industry revenue streams, the Schwarzenegger Free State has consistently tried to go beyond what federal laws prescribe. California already allows lawsuits on the basis of “vocal misappropriation.” This mystery tort lies somewhere between merely imitating a singer’s voice (which remains legal) and a copyright violation for using a singer’s recording.

Initially, “vocal misappropriation” doesn’t pass what lawyers call “the laugh test.” Seriously, that’s what they call it. The law makes it sound like a crime to sing in the shower. Criminal as your morning melisma might be, the courts have acknowledged that you’re not “misappropriating” anything when you belt a song out in your bubble bath.

But forget the laugh test: The more legally pressing issue is whether a law like this takes copyright lawmaking power away from Congress.

So far, the answer is no. Bette Midler was allowed to sue Ford Motors for using a Midler “soundalike” in one of its ads. The federal court of appeals deciding the case held that a person’s voice is not copyrightable because it is not “fixed” in a medium, as sound recordings are. Therefore, a California lawsuit based on “infringing the voice” is not pre-empted by federal copyright law.

As you may remember from the last IdoLawyer entry, judicial opinions can sometimes get a little carried away when it comes to the arts. And this is no exception. As the court explained:

A voice is as distinctive and personal as a face. The human voice is one of the most palpable ways identity is manifested. We are all aware that a friend is at once known by a few words on the phone. At a philosophical level it has been observed that with the sound of a voice, “the other stands before me.”

In this case, it was likely Midler’s high-powered lawyers, and not Midler herself, who stood in front of the court. Nevertheless, it was sympathetic to her cause, continuing in an awkward mashup of legal and literary prose:

A fortiori, these observations hold true of singing, especially singing by a singer of renown. The singer manifests herself in the song. To impersonate her voice is to pirate her identity.

Avast, Midler’s lawsuit has paved the way for similar California-based lawsuits against the eye-patch’d corporate pirates. Tom Waits sued Frito-Lay for using a Waits soundalike, for example. The jury found for Waits and imposed $500,000 of punitive damages on Frito-Lay. Some other chick sued Jennifer Lopez but lost on the vocal misappropriation claim because her suit was based on use of the actual recording, not an imitation.

Importantly, these suits come from California’s “common law”–background principles of law that aren’t codified officially in the ‘ritten word. Common law in California has strong protection for a person’s “identity.” Therefore, the Truth in Music law might be unnecessary under this general “identity” protection. (Your IdoLawyer expresses no view on this issue.)

The more interesting question is whether trademark law, which already covers “brand dilution” issues, pre-empts any aspect of the Truth in Music laws. And whether, without shameless impersonating bands, these artists would be facing the much larger problem of brand disappearance.

^* State-by-state legislation is not the way we actually get Constitutional amendments–brush up on your civics here.