A suit just filed in Detroit by the Romantics against Activision Inc. for including their 1980 song What I Like About You" in the video game "Guitar Hero" raises an interesting preemption question. Section 114(b) reads in relevant part:
The exclusive rights of the owner of copyright in a sound recording under clauses (1) and (2) of section 106 do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.
This section permits -- encourages -- the making of sound alikes. For example, in the sound track to the movie Easy Rider, the Band would not permit use of their song The Weight, so the label hired Smith to copy The Band's performance as closely as possible. No cause of action was available for this, the mechanical royalties having been paid. In the Activision case, a sync license was obtained for reproduction of the song. The Romantics claim however that the sound alike violates their right of publicity in the sense of imitating the sound of their voices. Without knowing the facts of the case, and just as a matter of general law, it seems such a claim is preempted since it is based on the very acts that Section 114(b) permits.
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An interesting preemption question, to be sure, but is it different in any significant way from the preemption question faced (and brushed aside) in Midler v. Ford? There, the court held:
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Midler does not seek damages for Ford's use of "Do You Want To Dance," and thus her claim is not preempted by federal copyright law. Copyright protects "original works of authorship fixed in any tangible medium of expression." 17 U.S.C. 102(a). A voice is not copyrightable. The sounds are not "fixed." What is put forward as protectible here is more personal than any work of authorship.
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The Midler court's analysis is a little thin, to be sure, but if the court accepts its reasoning, there doesn't seem to be a factual distinction to be had on the preemption issue.
The complaint is linked from my post on the case.
Joe, if I understand the complaint correctly, the difference is this: Midler's voice was not used in a sound-alike sound recording of an original composition, but in a TV ad. Here, the offending song is a sound-alike sound recording of the original song. And that's exactly what section 114 permits.
An imitation of Midler's voice was used in a TV ad, it's true, but it was used in a sound-alike recording of a song identified with Midler ("Do You Want To Dance" from Midler's 1973 album The Divine Miss M); here, an imitation of the Romantics' voice is used in a sound-alike recording of a song identified with the group ("What I Like About You" from The Romantics' 1980 self-titled album).
Members of The Romantics wrote "What I Like About You," while Midler didn't write "Do You Wanna Dance," and the latter was made famous by the Beach Boys first. But I don't see why that would make a difference for the preemption analysis (though it certainly could affect the underlying right of publicity claim).
Joe, would it change your analysis if Activision clearly labeled the non-participation of the Romantics in the recording? It seems that the complaint is less about the fact of imitation -- which is absolutely privileged by federal law -- and instead about passing off issues. But on a straight up publicity claim, where there is a sound-alike that is clearly labeled, I think there is an excellent preemption argument based on section 114: it is true that section doesn't create an express right to make sound alikes -- it instead says the copyright owners can't stop sound alikes, but the federal policy of permitting sound alikes is the same regardless of how the section is phrased.
All suggesting a "best practice" for the protection of a distinctive sound from a band or performer to be a successful application for a Federal trademark. If it works for Harley Davidson, it might work for other romantics too.
Sniff my tailpipe
One path to reconciling 114(b) and the Midler right of publicity case and the similar Tom Waits case is that publicity rights arise under state law. 114(b) restrains the federal rights granted under the Copyright laws by specifically excluding sound-alikes from the exclusive rights granted to the author of a sound recording. This preserves the federal mechanical rights held by composer but is not necessarily an affirmative (and therefore preemptive) grant of a federal right to make sound alikes. Remember, 114(b) does not say that an "independent fixation of other sounds" that "imitate or simulate those in the copyrighted sound recording" is not infringement under any circumstances (i.e., absolutely privileged conduct). Rather, that conduct merely does not violate the exclusive rights granted to the owner of copyright in a sound recording.
Just as sound recordings previously were among the last vestiges of common-law copyrights, 114(b) may simply leave the area of sound alike creation open to state laws, namely, right of publicity laws.
I agree there is no express preemption; my curiosity though is whether there is field or "conflict" preemption: did Congress by denying copyright owners the right to prevent sound alikes of the non-passing off ilk, have in mind a policy of wanting to permit them? If so, it doesn't matter that there is no express preemption. I don't know the answer, but thought it an interesting question.
I agree that the boundaries between publicity rights and copyright pose a number of interesting questions. As to the Activision case, do the Romantics refer to or even hold the copyright in the sound recording? If not, the 114(b) preemption issue gets even more interesting because its limitations target a specific class of rights holders. Put another way, the limits of 114(b) might restrict or preempt the owner of the sound recording from asserting rights of publicity to obtain relief that Congress specifically excluded from copyright, but would that bar a third party (e.g., the artist) from challenging conduct that the sound recording owner (e.g., the record label) could not under 114(b)?
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