Re: Soundalikes?

Scott Fedewa writes:
>
> So musical soundalikes are an exception to the rule that one can't
> reproduce another's protected expression without infringing? (as long
> as one pays the mechanical royalties to the writer, anyway).
>
> So if Bruce Springsteen covered a song sung by Frank Sinatra but
> written by Gershwin, and he sang it in a fashion to sound EXACTLY like
> Sinatra, Springsteen would not infringe on Sinatra at all . . .?

    Yes.

> And he wouldn't infringe even on Gershwin if he paid
> mech/negotiated royalties?

    Yes.     

> Wouldn't this destroy the market for
> Sinatra's version, though?

    In theory, though in practice this rarely happens.     

> And we would then have a substantially
> similar version with damaging market impact that doesn't infringe???

    Yes.     

    Note that there's the possibility of a state right of publicity action, see Midler v. Ford, though query whether that case is sound, or whether it would come out the same way for conventional recordings (as opposed to commercials).

• Eugene Volokh, UCLA Law <volokh[_at_]law.ucla.edu>