Entertainment Law Reporter
www.EntertainmentLawReporter.com
June 2006 Volume 28 Number 1

Right of publicity claim by recording artist Debra Laws against Sony Music, complaining that Jennifer Lopez’s recording and video “All I Have” sampled Laws’ recording “Very Special” without Laws’ consent, is preempted by federal copyright law, Court of Appeals affirms

Jennifer Lopez’s recording and video titled “All I Have” contains samples of a recording titled “Very Special” by Debra Laws. Neither Lopez nor Sony Music denies this fact. Indeed, Sony obtained a copyright license to use the sample from Elektra Records, the company that released Laws’ recording and owns its copyright. Moreover, the jacket for Lopez’s “All I Have” includes a credit reading “Featuring samples from the Debra Laws recording ‘Very Special’” – as required by the Elektra-Sony agreement.

Nonetheless, Laws sued Sony for violating her right of publicity under California law. Federal District Judge Lourdes Baird ruled that Laws’ claims are preempted by federal copyright law, because all of those claims were based on Sony’s use of Laws’ voice in a recording, whose copyright is owned by Elektra and was licensed to Sony (ELR 26:1:15). And that ruling has been affirmed by the Court of Appeals.

In an opinion by Judge Jay Bybee, the appellate court acknowledged “that not every right of publicity claim is preempted by the Copyright Act.” Judge Bybee said, “Our holding does not extinguish . . . rights of . . . publicity . . . so long as [it does] not concern the subject matter of copyright and contain qualitatively different elements than those contained in a copyright infringement suit.”

The reason that Laws’ claim was preempted was that “Elektra copyrighted Laws’s performance of ‘Very Special’ and licensed its use to Sony. If Laws wished to retain control of her performance, she should (and may) have either retained the copyright or contracted with the copyright holder, Elektra, to give her control over its licensing. In any event, her remedy, if any, lies in an action against Elektra, not Sony.”

Laws v. Sony Music Entertainment, Inc., 2006 WL 1410109 , 2006 U.S.App.LEXIS 12813 , http://www.ca9.uscourts.gov/ca9/newopinions.nsf/07FE3838B97B1F3288257177007CC014/$file/0357102.pdf?openelement