In the dynamic world of the music industry, the spark of creativity can be ignited by the most mundane aspects of daily life. A treasured voicemail, a trending social media video, or an impassioned love letter can become the building blocks of an unforgettable artistic experience for devoted listeners. However, the incorporation of these elements into an artist’s work can sometimes lead to legal complications.
Artists often face the daunting challenge of securing permissions. Whether it’s working with copyrighted materials, using private property for a music video, or collaborating with other artists, the path to creation is often fraught with a complex network of permissions and approvals. Notable artists, including the likes of Bad Bunny, Drake, and Beyoncé, have faced scrutiny for incorporating external elements into their music, with discussions often revolving around whether they obtained the necessary permissions.
Recently, actress Halle Berry voiced her disappointment over Drake’s decision to use her image as artwork for his single “Slime You Out”, despite her refusal to grant permission.
To demystify the labyrinth of permissions for artists, we spoke to Michael Lawrence, a high-profile entertainment lawyer at Lawrence Law in New York City. Lawrence shared his insights on what artists must seek permission for and what falls within the bounds of artistic freedom.
In 2012, rapper Drake faced legal action from his ex-girlfriend Ericka Lee for using a voicemail message she left him in his popular single “Marvin’s Room.” The lawsuit claimed her voicemail was a significant element of the overall work.
The short answer is, yes, artists do need permission. According to Lawrence, a voice note could be copyrightable in most cases. However, a basic voicemail that includes only standard information such as the caller’s identity and the purpose of the call, is not copyrightable as it lacks an original expression of an idea.
The need for permission is governed by privacy laws in several jurisdictions. For instance, New York’s robust privacy law, which has undergone multiple updates, mandates that using a living person’s name, voice, or any other identifying element requires permission from the concerned individual.
In October 2023, Drake released his single “Slime You Out,” in collaboration with SZA. The single’s artwork incorporated a doctored image of Halle Berry getting slimed at the 2012 Nickelodeon Kids Choice Awards. Upon the image’s release, Berry revealed that despite her refusal, Drake proceeded with using the image.
In cases like the one above, permission is required from both the individual in the picture and the photographer. The photographer, being the copyright owner of the picture, has the right to prepare derivative work. If a third party modifies the picture for commercial gain without permission, it infringes upon the copyright owner’s rights
Moreover, as the person recognizable in the picture, Halle Berry also has the right to control the use of her name and likeness for commercial gain. Though she doesn’t own the picture, she could potentially sue under the right of publicity.
In July 2022, Beyoncé released her critically acclaimed album, Renaissance, which featured a sample from Kelis’ 2003 hit, “Milkshake” on Beyoncé’s single “Energy.” Kelis expressed her displeasure on social media, accusing Beyoncé of sampling her single without permission.
According to Lawrence, if Beyoncé obtained the rights from the producer who owns the music, then she is legally in the clear. While it may have been a courteous gesture to notify the artist, legally, Beyoncé was not obligated to do so, as the artist doesn’t own any of the rights to the song.
In 2016, Kanye West landed in legal hot water for sampling a viral video of 4-year-old Natalie Green praying for his single “Ultralight Beam.” The family filed a lawsuit, stating that they never received a license agreement or payment for the use of Natalie’s voice.
Lawrence explains that such a scenario is not permissible. It infringes upon the child and the mother’s right of privacy, as they are private citizens, not public figures. The law of publicity protects public figures in similar situations, where their image or likeness is used for commercial gain.
In conclusion, the world of music and art is a delicate balance of creativity and legality. Artists must tread carefully while incorporating external elements into their work, ensuring they have secured the necessary permissions to avoid potential legal complications.
