Advertising Agency’s Use of Sound-Alike Infringes Singer’s Right of Publicity

Intellectual Property Expert WitnessThis case involves an advertising agency in New York that was doing a campaign for a snack food maker. The advertising agency knew of a song by a famous singer and decided to make a commercial using a word-play of the song. The song was by a well-known singer who had recorded many albums and was known for his distinctive, deep, bluesy voice. The advertising agency looked for a musician who could mimic the singer’s vocal style to do the commercial. The advertising agency found a professional musician who had experience doing imitations of the singer and commissioned a voice recording. This musician had perfected an imitation of the singer’s voice. The agency made the commercial with the musician imitating the singer’s voice but was afraid there would be legal repercussions because the commercial was too close to the singer’s real voice. The Vice-President of the advertising agency consulted the agency’s attorney about whether there would be legal problems if they used the commercial. The attorney told him that there was a good chance of a lawsuit because there were several recent cases that allowed musicians and celebrities to protect their distinctive voices. The advertising agency made an alternate version of the commercial using another singer but eventually decided to use the commercial with the musician imitating the famous singer’s voice. The singer filed a lawsuit for misappropriation against the advertising agency. An expert in audio forensics/ voice identification was sought to opine on the issue.

Question(s) For Expert Witness

  • 1. Can an advertising agency use a sound-alike to mimic a famous singer’s voice in a commercial?

Expert Witness Response

A famous singer or celebrity generally has a right to protect the use of their voice in order to sell products. This right attaches when the famous person is widely known and their distinctive voice is deliberately imitated in order to sell a product. When someone uses the voice of a famous person in this way, this is misappropriation under the laws in several states. This is misappropriation because the sellers of the product have appropriated what is not theirs and have committed a “tort,” or a legal wrong under the laws of several states. This type of tort is commonly referred to as a violation of the right of publicity. This is the right of a famous person whose identity has commercial value (usually a celebrity) to control the commercial use of their identity. When a famous person’s voice can identify them, the right of publicity protects them from imitators who may use their voice for commercial purposes without the famous person’s consent. In this case, the famous singer probably had a right of publicity and had a right to control the commercial use of his voice. Since the advertising agency deliberately imitated the singer’s voice without his consent and may have led the public to really believe it actually was the singer, they probably misappropriated his voice and violated his right of publicity.

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