Usher Sues Sony for Right of Publicity Violation for Use of Voice
No, not that Usher. Jasmine Usher, a Georgia-based singer, is suing Sony Music and the band Travis Porter for the use of her voice on the hit song “Ayye Ladies”. The song reached number sixteen on the Billboard Top 200.
Usher claims that her voice was recorded and used on the song without her signing a waiver for the use. She is suing in Georgia for a violation of her right of publicity and the misappropriation of her “name and likeness”—although her claim appears solely based (as pled) on the use of her voice.
This case raises the issue of copyright preemption. Federal copyright law should preempt state laws that conflict with the superior federal copyright regime. Here Usher appears to have agreed to perform on the copyrighted recording. Copyright holders have a right to distribute their recordings and to license such recordings for others to use. In such instances, courts have usually preempted the right of publicity claims. See, e.g., Laws v. Sony Music Entertainment (9th Cir. 2006).
On the other hand, Usher may have a legitimate claim if she was promised payment or royalties and then was not paid as promised. Arguably, in such an instance her consent would be withdrawn. A better way to think of this situation, however, is that this is really a breach of contract case, not a right of publicity one. Usher had no problem with the use of her voice, she just is owed money for the use. When the basis for challenging consent is solely failure to pay, courts have often preempted right of publicity claims. See, e.g., Fleet v. CBS (Cal. App. 1996).
I have written about some of these preemption issues in my 2002 article Copyright Preemption and the Right of Publicity, as well as more in a more recent essay The Other Side of Garcia, and will be providing a more developed take on this growing and controversial area of law in my forthcoming book, A Right is Born (Harvard University Press) on the right of publicity. Stay tuned.
THE RIGHT OF PUBLICITY: Privacy Reimagined for a Public World
This book from Harvard University Press by Professor Jennifer Rothman traces the history and development of the right of publicity and its current collision course with individual liberty, free speech and copyright law.