Do You Want To Dance? (FINAL VERSION)

In Midler v. Ford Motor Company, the 9th Circuit created a new right of publicity proscribing the imitation of professional singers’ voices for commercial purposes. Bette Midler, an actress and pop singer, declined to provide vocals for an ad campaign by Ford. Having already purchased the rights to the 1973 hit, "Do You Want To Dance", Ford turned to one of her backup singers, Ula Hedwig, and instructed her to “sound as much as possible like the Bette Midler record.” Although the court dismissed Midler’s copyright, unfair competition, and statutory claims, it found a common law right of publicity: “…when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort…”

While this decision might be viewed as a triumph for creative, independent artists over exploitation by corporate interests, the holding profoundly impacts the legal relationships between singers. In particular, classical singers—those of opera, oratorio, and art song—could be particularly handicapped in their ability to perform or to learn since the concept of a distinctive voice is sufficiently nebulous to consume the full range of classical vocal expression. This definition fails to acknowledge the difference between distinctiveness of performance and distinctiveness of voice. The latter is a subset of the former that also includes the musical score, genre, and technique. After controlling for these aspects of performance, distinctiveness of voice represents a largely immutable attribute that does not warrant legal protection.

The Composition

One major element of distinctiveness of performance comes from the score itself. In popular music, songwriters compose for individual singers, the singer records it, and as the popularity of the song increases, audiences increasingly associate the song with the singer. There may be a subconscious aural presumption, then, that a second singer of the same song is imitating the original performer, even if she had never heard the first singer’s performance. This is due to the notation of pitch, rhythm, text, instrumentation, dynamics, etc. fixed within the score, rather than any distinctiveness of the voice itself. As a creation of the composer, not the singer, the composition is properly covered under existing copyright law. In classical music, there is comparatively weak association between the singer and an aria since the vast majority of the repertoire is in the public domain, and only a tiny fraction of it is consistently performed. Therefore, audiences are accustomed to hearing countless different performances of any given aria by singers of different skill levels. The composition occupies a relatively small area under this conception of distinctive performance.

Style

Style represents another significant component of distinctiveness of performance. All other things equal, two singers performing in the same genre will be less distinct in their performances than two singers performing in different genres. For instance, consider the following performances of the celebrated aria, “Nessun dorma” by: (1) Luciano Pavarotti, the greatest tenor in the recording era; (2) Michael Bolton, a pop singer; and (3) Aretha Franklin, “the Queen of Soul”. Despite the fact that they are all singing the same piece, there is no difficulty in distinguishing between the three versions because the stylistic worlds they inhabit are so far apart. When comparing across genres, distinctiveness in style accounts for much of the distinctiveness in performance. Now consider a performance of the same aria by the 3 tenors (try not to look at the screen). Without visual cues, it’s far more difficult to tell who is singing when, partially because they are all singing in the classical style. Although discerning voices becomes easier with greater familiarity of the genre, it remains difficult even for experts. For instance, a notable feature of the Metropolitan Opera radio broadcasts was the Singer I.D., a segment where the host would play several different recordings of famous singers performing portions of the same aria. Only rarely could the panel of experts successfully pair each clip with the correct singer. But while distinctiveness in vocal style might account for some of the distinctiveness in performance, it is neither the same as distinctiveness in voice.

Technique

Another factor that accounts for distinctiveness of performance is the technique singers use to project their voices. In classical singing, there is only minor differentiation in technical goals, but huge variation in the skill at which singers are able to employ technique. At its core, the bel canto technique involves 3 phases—respiration, phonation, and resonation. The first phase describes the muscle coordination required to inhale and retain air; the second describes the interaction of that air with the vocal folds to create sound; the third describes the passage of the sound through the body. However, singers differ enormously in technical proficiency, and variations in skill constitute a significant portion of the observable distinctiveness of performance. Compare the Pavarotti excerpt supra with that of Paul Potts, an amateur that won Britain’s Got Talent. He sings the same composition in (arguably) the same style as Pavarotti, but there is no difficulty in distinguishing the two, given the vast difference in technical proficiency. Distinctiveness of skill should not be equated with distinctiveness of voice; creating a property right in the former would be counterproductive to artistic development.

Defining Distinctiveness

To the extent that it is possible to differentiate between performances after controlling for style, composition, and skill, the differences that remain may be identified as distinctiveness of voice. Some of this is quantifiable in acoustical terms: the relation of the fundamental pitch being sung with the clustering of partial harmonics in the sound spectrum. Qualitatively, voices might be distinguished in terms of timbre, color, or contour. Under this definition, the voice consists only of the vocal apparatus itself, a set of muscles and cartilages whose size and composition is largely inherited.

Conclusion

Perhaps Midler stands for notion that there is a right of publicity in the distinctiveness of performance, a concept that includes the elements of the written score, style, technique and voice. But a distinctive performance that can be imitated by others should not be deemed “distinctive” at all. Doing so is akin to awarding Tiger Woods a right of publicity prohibiting others from imitating his golf swing. He requires no legal protection in that action precisely because others cannot imitate it with similar effect. He is already awarded for such distinctiveness by being able win more golf tournaments. Similarly if Midler’s performance was truly distinctive, she would require no legal protection because others would not be able to effectively imitate it.

For now, Midler is probably inapplicable in the context of classical singing. The late Pavarotti, was probably only opera star that would be considered “widely known”. Moreover, few professional singers would concede to “deliberately” imitating a colleague. However, the Midler court’s failure to distinguish between distinctiveness of performance and voice dramatically and unnecessarily increased the property rights of famous singers.

References

1. 849 F.2d 460

2. Midler. http://www.youtube.com/watch?v=nV5KGvQGaMY.

3. Pavarotti. http://www.youtube.com/watch?v=ONUCPKdGcrk.

4. Bolton. http://www.youtube.com/watch?v=fkrCMI2fXTo.

5. Franklin. http://www.youtube.com/watch?v=9ySU8y---tM&feature=related.

6. 3 tenors. http://www.youtube.com/watch?v=MDtcidMR_6I.

7. Paul Potts. http://www.youtube.com/watch?v=K_5W4t_CBzg&feature=related.

-- EdwardNewton - 06 Apr 2008