January 31, 2023 Musicology No Comments

The legality is questionable. The morality is also questionable.

I’m low-key rooting for this to turn into something. The music business and the law are both somewhat inadequately prepared for a case like this, and I think it presents all kinds of interesting questions and opportunities for discussion and consideration.

First, the basic facts: Rick Astley is suing Yung Gravy whose hit “Emily (Get Money)” has someone singing over a “Never Gonna Give You Up” groove and weaving in bits of vocals from Astley’s 1987 hit record, and interpolating its chorus melody.

It’s pretty well done, and if you haven’t heard it, here you go, the defendant’s “Emily (Get Money)”:

And duh, here’s this.

What do you hear? You probably think you hear either samples from Never Gonna Give You Up or Rick Astley in good humor helping out, or both. So, what if I tell you…

  1. The Astley you hear on the record singing “Git Mo-nee” here and there, is not really Astley.
  2. Yung Gravy didn’t sample “Never Gonna Give You Up.”
  3. Gravy didn’t plagiarize “Never Gonna Give You Up.”
  4. Gravy is almost definitely not infringing on any copyrights.

Gravy faces a lawsuit nevertheless because of that first one; the vocals are not Rick Astley, just someone sounding a ton like Rick Astley.

“Is that illegal?”

First off, it’s certainly not copyright infringement, and the complaint doesn’t say it is. Astley might rely instead on “Right of Publicity;” which roughly (i am not a lawyer) refers to Astley’s right to control how he is exploited in a commercial endeavor; good or service, like a car commercial for example. The most famous right of publicity case was Bette Midler v Ford in which Midler successfully sued Ford, who had asked her to sing in a commercial, and, when she refused, used an impersonator. (Coincidently, speaking of suing Ford, you know who knows how to sue Ford? Astley’s attorney, Richard Busch.)

This is different. There’s no car commercial here; just the song and the video, and the consensus among lawyers I’ve asked seems to be that Right Of Publicity is going to fail for Astley. I believe them, mostly. increasingly. But I have questions. Gravy has no affirmable license to recreate elements of Never Gonna Give You Up that its publisher did not own and could not license to him. If he wanted the voice, free and clear, he could’ve sampled the record. And if he wanted Astley, he could probably have hired Astley.

I might have a bee in my bonnet. I’ll admit that. I find the song interpolation epidemic we’re in unfortunate; the current trend of old songs getting quoted, interpolated, and otherwise exploited in new works. I finger-waggingly disapprove, for example, of how Ariana Grande reworked “My Favorite Things.” I keep hearing about this being “a nostalgic time,” but the rationalization lands in my ear as marketing or maybe deflection. The other available explanation is similar to what seems to have happened to filmmaking — if you need funding to get a film made, it wouldn’t hurt to present the money folks with a familiar well-established property as your springboard, something that puts a floor under how much money you stand to lose. As a result, we get retreads of old blockbusters that nobody asked for instead of riskier more original stories like Banshees of Inisherin. (Might not be the best example, I’m no film expert.) In music, we have increasingly common nine-figure buyouts of songwriter catalogs by corporate acquirers understandably looking to unlock that value, actively shopping the wares to TikTok-relevant recording artists, and asking that they breathe new revenue streams into the lives of these memorabilia collections. Fine, it’s good business, but it’s pandering. The nostalgia part isn’t anything new, and interpolations aren’t new. Ghetto Superstar was a long time ago. Holst’s suites were a really long time ago. Listen to how nicely Greensleeves appears at 12:58.

And I’d have no trouble showing you countless interpolations in classical music. What we do today is less clever, because we’re less talented but more expedient. I can live with that. It is so obviously a good money grab that young artists like Justin Bieber are taking the present-day value for their future revenue streams these days, knowing the acquiring companies will create efficient markets for these assets. Interpolation Nation is what they’ve come up with so far. Nostalgia is a nice spin, but it’s less cute to think, “Isn’t this mostly us being sold songs we already know, and already bought, and with so little added to it?”

I’m grumpy sometimes.

But I’ll say again, I lowkey like “Get Money.” Interpolations, done with a smirk, as Yung Gravy has are 100x more palatable than thinking you’ve made something “transformative” and cool.

Interpolations and copyright are irrelevant, and yet, here’s both.

Like any song, “Never Gonna Give You Up” has one copyright covering the record we all know and rickrolled the hell out of, and another covering the underlying song that was written in this case not by Rick Astley. Yung Gravy evidently licensed the song, not the record, which is how the song interpolation economy works. You can acquire a license to use the underlying song for a lot less, almost always, than what the record companies would charge you to sample the audio from the recording. And wow, you get a lot for your money. You can find producers skilled in old-fashioned recording to reperform, rerecord and reproduce the instrumental parts for you, and boom, it’s like you sampled the record. When it’s done well, as here with Get Money, you can barely tell the difference. And this comes with advantages galore. The “resampled” material is endlessly more flexible compositionally than audio fragments from a record would be. If you wanna make a version that’s very different here and there from the recording, go ahead. Want to rearrange the song, that’s easy. Want to make it sound like you paid the big money and sampled the record? Yup, this is your workaround, for now.

Yung Gravy re-recorded a few sections of Never Gonna Give You Up, chopped up the groove, and tellingly opted for intentional low-fi touches so it sounds sampled and constructed. It’s why you hear those retrigger-type gaps in the string sections. That’s an artistic election. It’s cool. But it also highlights the fact that this is all a workaround to licensing the audio, does it not?

And copyright law, while I am not a lawyer, seems to have a gray area here. You can obtain a compulsory license to record and distribute a cover song and there you don’t need to negotiate with the copyright holders, the license is just available. Last I checked the rate was 9 cents per unit sold or so. If you never sell a single copy, you pay nothing I suppose? And last I checked the prevailing wisdom was that if you want to haggle you can expect to successfully negotiate it down. Nine cents was the lazy person’s rate.

The instruments you use to make a recording are not themselves “music.” They’re not “expression,” which is protected by copyright but merely the tools of expression. Does that allow you to mimic a voice? That’s part of the question here. And more broadly, should we be allowing re-recorded samples? Or are they tantamount to the recording? How close is too close? Soundalikes are probably not considered in either the recording copyright or the underlying composition copyright. So now that we have so much replaying of samples, this might be something for the law to consider.

What about the Rick Astley vocals?

Well, he didn’t sample the record, so he had to get either Rick Astley or someone who could impersonate him if he wanted the vocal elements too.

But Astley’s voice is not on the sheet music. It is not a compositional element. It did not come with the mostly irrelevant license they have. It would have come with the original recording, but the song interpolation economy is propelled by NOT paying for that. Instead, the way the law seems to regard rerecorded samples, you get every stitch of value and more by doing these resamples. It confuses me that the tiniest audio sample is protected, you can’t sample 8 seconds or 8 milliseconds of a recording, but you can recreate an eight-bar section approaching 100% identical and get all that IP value for yourself, and that’s cool with copyright law.

Aaron Moss of Copyright Lately did his usual great job of covering all of this.

Why Astley’s New Soundalike Lawsuit Should Be Rickrolled Out Of Court

By the way, if you’ve been thinking Astley’s cash register rang every time someone got Rickrolled, think again. Astley only collects royalties as an artist. Kinda like Kelis from the Beyonce debacle. I think all of that is interesting too. Copyright is supposed to protect not ideas but expression. But instruments are expressive. And vocals are the most expressive instrument. As a musicologist, I am always thinking about less obviously protected musical elements like a rapper’s flow and how they relate to protectable expression. What the vocalist does on a recording cannot be fully notated on a page. So it is left arguably underserved by copyright law; somewhat in between the copyright for the recording and the copyright for the musical composition.

What Astley says he owns though is his identity and his voice, and the value of that arguably just plummeted because the voice on Yung Gravy’s new track is close enough for pretty much anyone, I’d say.

If the vocal were more obviously not really Astley, that would be the escape hatch, like a fair use defense in copyright infringement. Here though, Astley has been harmed.

So the law might be a little bit behind the curve on this; it’s not an isolated case. There have been others, like Flo Rida’s What A Night which has “replayed” Frankie Valli vocals. There haven’t been many, but I’ll bet there are many in the pipe, perhaps now waiting to see how this shakes out.

Written by Brian McBrearty