Two days ago, in Laws v. Sony Music Entertainment, the Ninth Circuit issued an opinion that makes sense. That accomplishment alone is worthy of mention, although the sheer common sense of the matter may have dictated the result. Plaintiff Debra Laws is a composer and recording artist. She recorded a song of her own entitled "Very Special." She had a contract with Elektra/Asylum Records in which she transferred many rights including the right to use and to permit others to use her name, likeness etc. in connection with the master recording. Subsequently, the label's agent entered into an agreement with Sony to use a sample of Laws' recording in the song "All I Have," performed by J Lo and L.L. Cool J. Proper attribution was given. The song became a smash hit, something J Lo needed after Gigli and the Bennifer days. Laws sued in state court for right of publicity violations. The case was removed to federal court, where the district court held the claim preempted and the court of appeals affirmed. (Parenthetically, removal was not the only way this could have been handled; a claim of preemption could have been decided by the state court, with the same result obtaining).
There is no question that appropriation of someone's voice can give rise to a publicity claim: the court of appeals had so held in Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir.1988) and in Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992). But this case was closer to Sinatra v. Goodyear Tire & Rubber Co., 435 F.2d 711 (9th Cir, 1979), the "These Boots are Made for Walking" case, in which a claim by Frank's daughter was rejected for an advertising use of the song with permission of the copyright owner. And that's why it was easy for the Ninth Circuit to get the Laws case right: when the performer has authorized the use of a copyrighted work and it is the copyrighted work that is being used for itself, the claim is one regarding whether use of the copyrighted work is authorized. That claim arises under the Copyright Act and thus Section 301 kicks in. If the performer wants to prevent sampling, he or she can do so by contract; right of publicity laws can't be used as an end-run.
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It's a good decision, but I don't see how it will slow down the forward march of the right of publicity. In this case, the judges weren't willing, essentially, to let it void a contract. Obviously, most claims will not deal with contracts. If the courts continue on their present course, I would legislators, seeing how creativity can be stifled, would create greater limits to the "right."
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