‘Never Gonna Give You Up’ Voice Suit Rolls Across Many IP Issues

Rick Astley’s lawsuit over a rapper incorporating a “Never Gonna Give You Up” sound-alike clip faces major First Amendment hurdles, lawyers say, though the rapper’s false assertion that Astley endorsed the impersonation could give the ‘80s icon a boost.

Matthew Huari, known as Yung Gravy, acquired a license to use the composition copyright of Astley’s oft-memed 1987 hit in order to mimic a portion of it in his 2022 song “Betty (Get Money).” But Astley’s California state court complaint said Yung Gravy violated Astley’s right of publicity—which can include copying one’s voice—and falsely suggested Astley approved of the song.

The case implicates an array of intellectual property issues, including whether and when the right of publicity can be asserted over part of an artistic work without being preempted by copyright law. It also invokes music industry sampling practices, the line between the First Amendment and the Lanham Act—an issue before the US Supreme Court—and the definition of transformative use—also before the high court.

Astley’s claims include state law right of publicity and false endorsement under federal trademark law—the Lanham Act. Yung Gravy’s song, certified gold and viewed at least 32 million times on YouTube, incorporates an “indistinguishable imitation of Mr. Astley’s voice throughout the song,” Astley said.

The complaint notes that courts have held that voice imitation can create right-of-publicity liability. But harnessing right of publicity or trademark law against such use in an artistic manner—especially one to which he acquired at least a a partial license—complicates if not dooms the claim, attorneys say.

“It’s not a straightforward claim. They’re having to be creative with trying to enforce what rights he has,” IP attorney Meaghan Kent of Morgan, Lewis & Bockius LLP said. “They’re going to have to stretch a bit from the existing case law, I think.”

The dispute over the song itself carries a number of interesting wrinkles. And even if Yung Gravy validates mimicking Astley’s voice, he may have dug himself a separate hole by allegedly saying Astley “digs the song,” “approved it,” and is a “fan.” That could support a distinct false-endorsement claim in a promotional context, one removed from the First Amendment implications of an artistic work, attorneys say.

“If in fact that’s true, that would be a little reckless to say that he endorsed it,” IP attorney Ronald Oines of Rutan & Tucker LLP said.

Oines said Yung Gravy could argue he reasonably believed he was within his rights based on fair use and licensing the composition copyright, potentially mitigating any damages even if he is held liable. That would be more difficult if he explicitly misrepresented Astley’s endorsement on top of mimicking Astley’s refrain, he said.

“The defense has some issues here,” Oines said.

‘Copyright in Disguise’

Despite acquiring rights to the composition to “Never Gonna Give You Up,” which Astley doesn’t own, Yung Gravy failed to secure separate rights to copy the sound recording—which Astley co-owns—or Astley’s voice, the complaint said.

Astley highlights the US Court of Appeals for the Ninth Circuit’s 1988 right-of-publicity decision in Midler v. Ford Motor Co. The appeals court ruled Ford violated actress Bette Midler’s rights through a voice impersonator in an ad for the Mercury Sable.

Right-of-publicity laws prohibit unlicensed commercial use of one’s name, image, and likeness. But Yung Gravy’s use in an artistic work distinguishes the suit from Midler’s case, as well as singer Tom Waits’ 1992 Ninth Circuit victory over Frito-Lay Inc. in a similar ruling involving a Doritos commercial.

“In that case, her voice was imitated and used in Ford advertisements,” Kent said of Midler. “It was clearly commercial use, and different from what they have done here.”

Astley’s right-of-publicity and other state law claims may not even get that far, IP law professor Jennifer Rothman of the University of Pennsylvania said, as the federal Copyright Act preempts any claims that cover the same rights as those protected by copyright law.

She pointed to the Second Circuit’s 2019 rap sampling ruling that held 50 Cent’s right-of-publicity claim against Rick Ross was preempted. The court said the focus of the claim was enforcement of the composition and sound recording copyrights in 50 Cent’s hit “In Da Club”—copyrights owned by the music label.

Yung Gravy recreated rather than sampling—directly copying—Astley’s song, which Rothman called a “twist” that makes the case interesting. But she said the case would still “probably be analyzed similarly.”

Coming too close to exactly copying the sound of “Never Gonna Give You Up” could still infringe the sound recording copyright. But a right-of-publicity claim over Yung Gravy’s mimicry would likely still be preempted as “copyright in disguise,” she said.

If the court deemed the right of publicity claim sufficiently distinct from copyright, “it could be potentially disruptive to the music industry,” she said. Circuit courts have already split over how to handle music sampling in copyright law, and layering publicity rights over that would further complicate matters.

“Essentially it would mean you can’t do these soundalikes,” Rothman said.

Ginger and ‘Barbie’

Yung Gravy could also cite as a defense the IP and First Amendment balancing test from the Second Circuit 1989 ruling in Rogers v. Grimaldi. That test—which asks if use was artistically relevant and not explicitly misleading—has often been applied to trademarks.

But in Rogers, the Second Circuit shot down actress Ginger Rogers’ right-of-publicity and Lanham Act false-endorsement claims—the same claims Astley brought.

Jack Daniel’s attacked the test before the Supreme Court in a bid to revive trademark claims over a whiskey bottle-shaped gag dog toy—though even some of its backers say the test is fine for traditional artistic works. If the Supreme Court accepts even a narrowed Rogers test, Yung Gravy could use it to thwart Astley’s Lanham Act claim.

Additionally, in 2001 California’s Supreme Court incorporated the heavily debated copyright fair use concept of transformativeness as a defense in right-of-publicity claims.

In Comedy III Productions v. Gary Saderup, it found a shirt with artistic depictions of the Three Stooges failed to sufficiently transform the classic comics’ personas. But it noted that altered contexts like parody, commentary, fictionalizations, or even factual reporting could move a claim beyond the reach of right of publicity law.

“You could argue it’s a commentary on the work: ‘We used to listen to this song, look at what this has inspired,’” Rothman said of “Betty (Get Money),” noting that Astleys’ own music video appears on a television in the background of Yung Gravy’s.

A fair use defense wouldn’t be the “slam dunk” that Danish band Aqua used to defeat toymaker Mattel’s trademark suit—the Ninth Circuit in 2002 affirmed a ruling that the song “Barbie Girl” was a parody, Rothman said. But that still leaves daylight for Yung Gravy.

“I still think it’s a strong First Amendment defense.”

The case is Astley v. Hauri, Cal. Super. Ct., No. 23SMCV00351.