BetteBack June 24, 1990: Bette Midler Lawsuit Opens The Door For Copycat Lawsuits

Pacific Stars And Stripes
June 24, 1990


Once upon a time, success in the music industry was marked by gold and platinum albums. In the ’90s, the mark of distinction may well be a major lawsuit, and that’s not even taking into account the dozens of suits filed against rap, house and dance-focused artists by music-makers whose original recordings have been sampled – for a phrase, bass line or beat – and recycled.

In most cases, complainants have opted for a lump-sum settlement or a portion of the royalties, but the issue of sampling as theft and copyright infringement is one that will be argued in the courts for years to come.

In the meantime, here’s a rundown on some of the more interesting recent cases, as reported in Billboard magazine, which might consider a new jurisprudence flow chart:

In May, a California jury awarded Tom Waits $2.5 million – a million more than he asked for – in a voice-impersonation suit against Frito-Lay and its ad agency, Tracy-Locke Inc. The suit, filed in 1988, charged that Frito-Lay stole Waits’ voice and put words of endorsement (for Salsa Rio Doritos) in his mouth by hiring a singer who did a Waits impersonation as part of his stage act and patterning the radio jingle after Waits’ song “Step Right Up.”

Suits involving “sound-alike” celebrity impersonators were given credibility in November 1989 when Bette Midler won a suit against Ford Motor Co. over the proprietorship of her voice, but this is the first time a jury has awarded punitive damages ($1.5 million) in an
impersonation case. Waits – who was also awarded $100,000 as compensation he would have received had he done the ad, $200,000 for personal suffering, $75,000 for harm to his reputation and $100,000 under a false-advertising statute – may want to use some of the money for a good publicist: Most of the jurors said they had never heard of him before the trial. Both the Waits and Midler decisions are being appealed.

Black rockers Living Colour tuned in to the new Fox hit “In Living Color” and promptly filed suit against 20th Century Fox and Ivory Way Productions charging trademark violations over the show’s title and its logo, which was similar to the band’s. The suit charged that Ivory Way repeatedly approached Living Colour before production seeking to use “What’s Your Favorite Color” as the show’s theme song, only to be turned down. The suit asked Fox to stop using the name and logo; Fox subsequently changed the logo so that it no longer resembles Living Colour’s, but the battle over the name remains unsettled.

In another copyright-infringement case, a federal judge refused to dismiss a $5 million suit filed by rotund rap trio the Fat Boys against Joe Piscopo, Miller Brewing Co. and its ad agency. At issue: television ads featuring Piscopo and three rotund rappers. The suit says Miller and its agency had asked the Fat Boys to appear in the commercial but they refused, after which the agency sought “three fat black males” who ended up bearing a “striking resemblance” to the Fat Boys. The suit also mentions that one of the messages the Fat Boys try to convey to youth in their music is “to avoid all use of drugs or alcohol.” However, the judge ruled that the Fat Boys could not pursue their case on the “soundalike” issue under existing privacy laws in New York and neither could they press their case on defamation grounds.

Just as Capitol has unleashed the Beach Boys’ back catalog for the first time on CD – including the seminal “Pet Sounds,” as readers of “Doonesbury” well know – assorted Beach suits (and we’re not talking swimwear) are headed for the courts. Irving Music, which owns the publishing rights to many early Beach Boys classics, is suing Leonard Hill Productions Inc., claiming the film producers lied to obtain licensing rights to those songs for “Summer Dreams: The Story of the Beach Boys,” broadcast on ABC this spring.

The film, based on the unauthorized Steven Gaines biography “Heroes and Villains,” was also not authorized by the Boys. The suit says Leonard Hill misrepresented the film as “a teenage coming-of-age movie” and said the only visual depictions of the music’s sources would be a radio from which the songs would emanate.

The songs were subsequently performed in studio and concert settings by actors lip-syncing to sound-alike musicians.

Brian Wilson, meanwhile, is suing Irving Music over copyrights to 100 songs he wrote or co-wrote between 1962 and 1969 for the Beach Boys’ publishing company, Sea of Tunes. He’s suing Almo-Irving Music, A&M Records and Mitchell, Silberberg and Knupp, claiming fraud, breach of contract and misrepresentation. Irving bought Sea of Tunes in 1969 for $700,000 from Murry Wilson (father of assorted Beach Boys and the group’s manager at the time). The Brian Wilson song catalog reportedly earns as much as $3 million a year and today is worth some $30 million to $40 million.

And Stan Love, brother of the group’s lead singer, Mike, filed a petition seeking conservatorship of Brian Wilson and control of Wilson’s personal and financial affairs. Stan Love, formerly Wilson’s bodyguard, charges in his suit that the group’s principal songwriter and creative force (at least in its heyday) has been the subject of “extensive brainwashing” by his former therapist, Eugene Landy, who had been treating Wilson for drug and alcohol problems since the mid-’70s and became involved in his professional career in the ’80s.

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