Rick Astley’s Intellectual Property Action a No Brainer
Prominent 80’s and 90’s artist Rick Astley (Astley) has recently commenced legal action against rapper Yung Gravy (Gravy) over the use of Astley’s song ‘Never Gonna Give You Up’ in Gravy’s song ‘Betty (Get Money)’. Gravy’s song was such a hit in Australia that it came in 97th in Triple J’s 2023 Hottest 100 countdown. Astley had reportedly given permission for Gravy to borrow the melody for his song but did not give permission to use his voice. A Gravy vocalist performing on the track had the ability to sing in a voice remarkably similar to Astley’s, giving the impression that it was in fact Astley who was performing in Gravy’s song.
Astley sued Gravy in Los Angeles in late January, with the lawsuit stating that the use of the impersonator is illegal because the song violates Astley’s right to control the commercial exploitation of his identity and prevent unauthorised commercial appropriation by others. Although wealthy music stars fighting over lucrative music rights may not seem relevant, the core issue is intellectual property (IP) rights, which affect many everyday Australians. More specifically, unique issues like what IP rights are attached to a person’s voice, can pose significant legal problems. Individuals and businesses can better understand IP issues to protect their interests, while on the other hand, refrain from infringing on others’ IP rights.
What is Intellectual Property?
IP is an area of law which can be misunderstood due to the mystique of something that is often not tangible. IP is the property of a person’s mind or their exclusive idea, and there are laws to protect a person’s IP in the same way there are laws to protect a person’s house. IP covers things like:
- Trade marks;
- Confidential information; and
- Reputation and goodwill.
Some areas of IP are registerable in Australia, such as a trademark or a patent, while other areas, like copyright, are mostly not registerable but are an automatic benefit which is protected by legislation and the common law. IP Australia is a government body that administers IP rights and legislation, and also grants rights in trademarks, designs, and patents. Copyrights, and circuit layouts, are managed by the Attorney General’s Department, while confidential information and goodwill are covered by contracts and confidentiality agreements. There are several pieces of legislation that governs IP in Australia, including the;
- Trade Marks Act (Cth);
- Patents Act (Cth);
- Copyright Act (Cth);
- Designs Act (Cth); and
- Plant Breeder’s Rights Act (Cth).
Applications of Different Types of IP?
Trademark and copyright are perhaps the most widely known, or recognisable words, when it comes to IP. A trademark is intended to be used to distinguish the goods or services from one person to another in the course of business. A trademark will protect things such as:
- Images; and
Once a trademark is registered, it is then the personal property of the registered owner. To register a sound as a trade mark, it must be a unique file that can distinguish a business from others. And the sound must be able to be represented graphically; such as a musical notation, or an accurate description. Remember the “happy little vegemite” tune? That is a registered trademark. So, trademarks can be used for a sound but it is more likely copyright which is applicable to popular song.
Copyright is founded on a person’s creative skill and labour, and it protects the original way a person expresses their information or ideas. The most common forms of copyright are writing, visual images and music. There are also economic rights attached to copyright material through the ability to exclusively communicate the material to the public, however, there are also moral rights associated with copyright. In Australia the right of integrity, attribution and the right against false attribution are provided to the author of copyrighted material. Copyright is infringed if a person does or authorises the doing of any act falling within the copyright in a work without the copyright owner’s permission.
Is a Person’s Voice Part of their IP?
Astley’s case poses an interesting question, with the obvious starting point being copyright law. It is illegal in Australia for a person (hypothetically Gravy) to feature a recording of a performance to the public of a person (hypothetically Astley), if that person (Gravy) knows the person (Astley) is not a performer in the performance. The moral responsibilities under the Copyright Act have not been tested in court in Australia on this issue.
Further, a similar issue was tried in America (coincidentally involving another 80’s icon) when Bette Midler sued motor company Ford for using someone to imitate her voice in a commercial that used one of Midler’s songs that the copyright holders had given Ford permission to use. On appeal, the Court found that Midler’s voice was distinct and protected from appropriation, especially because she was a renowned singer.
It is yet to be seen whether a court in Australia would come to a similar decision.
Further IP Issues to Consider
The Astley case brings into consideration more equitable issues around IP. Astley’s lawyers have claimed the defendants have intentionally deceived the public and created consumer confusion. The Tort of passing off is concerned with a representation that falsely suggests some connection with another person’s product or business which includes reputation and goodwill. Individuals who have become well known to the public through entertainment, sport or pop culture may take action to stop the unauthorised use of their name or image. It would be interesting to see if this would extend to a person’s voice, but the premise of the action is there.
Reputation and goodwill and misrepresentation are both elements of passing off. Anyone who brings an action involving a person’s reputation or goodwill will need to show that a substantial amount of people would consider their name to be distinctive of their goods or service. It does not necessarily have to be a celebrity, as long as a person can show that goodwill has been established in relation to their product or business. Character merchandising is an example of misrepresentation, where the name or image of a celebrity is falsely associated with a celebrity. As an example, Nintendo Co ltd v Care (2000) 52 IPR 34 was a case where Nintendo had numerous trademarks over their popular characters and Australian wrestlers had imitated arguably Nintendo’s most famous character, Super Mario. The Court held this was clearly a misrepresentation.
Astley’s lawsuit brings attention to the important area of law that is intellectual property. Salerno Law has dedicated IP specialists to help with any IP issues that you may encounter, whether individually or for business.
Intellectual Property (IP), patents, copyright and trademark law are instrumental in acquiring and maintaining market share in every industry. Salerno Law lawyers are knowledgeable in this unique area of legal practice. This includes providing tailored advice to clients both in Australia and overseas in industries such as fashion, technology, leisure, tourism and engineering. The protection of the rights of our clients is mission-critical to prevent disputes and ensure any issues are effectively managed at all times.
Our reputation for results in intellectual property law attracts the most talented and dedicated lawyers in the field.
Author Christopher Horn
 Rights that protect layout designs or plans of integrated circuits used in computer-generated designs.