Astley v. Matthew Hauri PKA Yung Gravy & California’s Right of Publicity
A new lawsuit has emerged regarding the right of publicity. Filed in the Los Angeles Superior Court, sing-songwriter Rick Astley claims rapper Yung Gravy violated his right of publicity by using a soundalike in Yung Gravy’s song “Betty (Get Money)” that sounds like his voice in “Never Gonna Give You Up.”[1] Astley released “Never Gonna Give You Up” in the summer of 1987.[2] Yung Gravy released “Betty (Get Money)” on June 10, 2022.[3] Although Yung Gravy was apparently licensed his instrumentals from “Never Gonna Give You Up,” Astley claims that the beginning of “Betty (Get Money)” unauthorizedly copies his actual voice.[4]
The person actually singing in the beginning of “Betty (Get Money)” is Popnick, one of Yung Gravy’s music producers.[5] At first glance, Popnick definitely sounds like Astley, but listening to them closely side-by-side, there may be an important difference in both the tempo of the song and the sound of the singers. Still, Astley and his attorneys assert that Popnick’s vocals are a “nearly indistinguishable imitation of Mr. Astley’s voice” and that “[t]he public could not tell the difference.”[6]
In California, the right of publicity is codified in California Civil Code § 3344.[7] The statute prohibits anyone from “knowingly us[ing] another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent.”[8] The common law in California and the Ninth Circuit has further defined and expanded upon the right of publicity to make the appropriation of an individual’s identity actionable.[9] Astley’s claim relies heavily on this precedent.[10]
In Midler, Ford created a commercial soliciting sales of their Ford Lincoln Mercury, and used soundalikes to sing popular songs from the 1970s on the commercials.[11] The commercial did not incorporate the names or photographs of the singers.[12] Bette Midler successfully sued Ford because their use of the soundalike sufficiently confused the public into thinking that Midler was actually singing in their advertisement, and Ford profited from it.[13] In imitating Midler’s voice, Ford appropriated her identity.[14]
A key difference in Midler is that the soundalike was used in an advertisement, whereas here, the soundalike was used in a song instead of any sort of advertisement. This could be a major problem for Astley in his reliance on Midler.
Experts in the field of First Amendment litigation suggest that Yung Gravy could prevail if he is successful in arguing that his use of Astley’s likeness was “transformative – when the voice is used ‘only as an element of the new work, but adds a host of other important creative elements that make is something else that is new and worth of First Amendment protection.’”[15] The Supreme Court of California stated in Comedy III Productions, Inc. v. Gary Saderup, Inc. that transformation is central to balancing the right of publicity with the First Amendment.[16] The Court defines transformation as when a product has primarily become something other than the celebrity’s likeness.[17]
Others point out how Yung Gravy attempted to secure a license for this particular song and was denied, stating that this fact could harm his defense as it has for defendants in similar cases.[18] Another interesting factor could be that Popnick publicly disclosed their efforts to imitate Astley. While Astley’s attorneys will probably argue that this is practically an admission of guilt, it could cut in the opposite direction if it can be seen as resolving any confusion that Astley is actually singing.
Footnotes
