By: Lea Washington
What do you get when you put a roll and gravy together? A lawsuit apparently. The “Rickrollin’” star Rick Astley is suing upcoming rapper Yung Gravy and his team. Gravy’s song “Betty” is the focus of this dispute, as it borrows from the song “Never Gonna Give You Up” which boasts 1.3 billion views on YouTube. Astley’s lawyers say, “In an effort to capitalize off of the immense popularity [defendants] conspired to include a deliberate and nearly indistinguishable imitation of Mr. Astley’s voice throughout the song.” Astley is claiming Gravy and team’s actions were theft since, “Defendants were unable to obtain a license for a sample.”
Astley’s claims in dispute are about the alleged use of his “voice” in “Betty”, not the instrumental (“non-vocal”), used throughout the song. Importantly, this case includes issues of likeness, impersonation, and misappropriation, but we’ll talk about the music issues here. My prediction is this case will come down to the question of what “scope of use” Gravy secured to use “Never”.
Even though privileged case details aren’t available, it is known that Gravy secured the right to use the underlying musical composition of “Never Gonna Give You Up” in order to interpolate the song. Although Yung Gravy had permission to use the underlying composition of Astley’s tune, he did not have permission to use the original sound recording.
Astley’s lawyer says, “A license to use the original underlying musical composition does not [authorize] the stealing of the artist’s voice in the original recording.” So, what did Gravy and his team do? They re-recorded parts of “Never Gonna Give You Up.”
Since Astley only granted Gravy permission to use the underlying composition, it should be emphasized that the permission Gravy got for “Betty” is not really a sample—just a musical composition license to interpolate. When an artist obtains a musical composition license, or mechanical license, they are not required to seek additional special permission from the copyright holder when it comes to how they use the license. Gravy apparently secured permission to interpolate from Astley anyway, but now Astley claims Gravy did not interpolate the song in the agreed upon manner.
Most of Gravy’s song “Betty” fits the traditional characteristics of interpolation in today’s music landscape. According to the U.S. copyright office, “an interpolation involves taking part of an existing musical work’s composition (as opposed to a sound recording) and incorporating it into a new work.” This is distinct from a sample, which is use of part of the original recording.
But, right after “Betty’s” intro, listeners with ears attuned to modern hip hop’s trends first hear what they were expecting: a sample! Or is it? Upon first listen, one may think, as did I, that what you’re hearing is just a recording of Rick Astley’s original rick-roll hit played slightly pitched down. Listen again! The instrumental of “Never Gonna Give You Up” most likely is a “sound alike”, or a “re-record”. The listeners who stretch their ears just a bit farther will also catch that it is a different singer performing the intro. This talented vocalist is Nick Seeley, also known as Popnick. This is not a sample, because samples utilize the original recording.
It’s true that “Betty” uses the “Never Gonna Give You Up” instrumental hook throughout, with a rap performance layered on top, just like gravy (I couldn’t resist). Yung Gravy has some clever rhymes thrown in too. But since Gravy’s team allegedly did not have permission to use the sound recording of “Never”, the music you hear is a note for note re-record. It can be inferred that Astley expected Gravy to remake his song’s instrumental and add the rap on top as interpolation. This all accumulates to interpolation at it’s finest! With a musical composition license, remember, Gravy doesn’t need permission to re-record an exact copy of our Rickroll favorite tune.
This trick has been used for decades by commercial producers, movie makers, and even you, if you’ve ever posted a remix or creative cover on YouTube or TikTok. With permission, artists with a license to use the underlying musical composition can produce their own sound recording version, different from the original song. By doing this, they can technically avoid purchasing a separate sound recording license. Ever wondered why Shazam doesn’t recognize live covers? One reason is because an artist’s re-creation of the sound recording is not the original work itself, apart from the composition. This re-record method is an industry standard activity, and I should know, because I had to make them to receive my degree in Writing and Production from Berklee College of Music. Under fair use, my professors would task my classmates and me with making a high-quality recording of a song that had to sound almost exactly like the original to pass the final. No matter how hard us loveable musicians tried, we could never make the new audio recording sound exactly, wave for wave, like the original target recording. Since each audio wave is unique like a fingerprint, it’s sonically nearly impossible, especially with voices. So, when Astley’s attorney alleges that Gravy “conspired to include a deliberate and nearly indistinguishable imitation of Mr. Astley’s voice throughout the song”, we must put an emphasis on “nearly”, because it is not the same recording. Musically speaking, Gravy and team are probably acting within the scope of their license.
Now remember when I said that “sound alikes” are never the same as the original recording?
As far as vocals go, most of Popnick’s performance isn’t even copying the vocal notes from “Never Gonna Give You Up.” In fact, the only nearly verbatim re-record of the notes Astley actually sang in “Never Gonna Give You Up” is in the intro of “Betty”. The rest of Popnick’s performance is “ad libs” throughout the recording that are nods to Astley’s characteristic sound. Furthermore, these ad libs, even though they are very “Astley-esque” were never sang by Astley in the original recording of “Never Gonna Give You Up.” They are just toppings to a meal, like gravy. With Gravy’s license, he technically has musical permission to do this too, after all, people who make covers ad lib on vocal parts.
Depending on how the court decides the case, the norm of artists making and remixing covers hangs in the balance. If the judge decides that an intro with a “re-record” is infringing on the likeness of Astley, we may see other courts begin to decide in the same way. Re-records, interpolations, samples and covers have become such a salient part of our culture in the global collective of musicians and artists, that if these practices are painted in a legally negative light, it may infringe on artistry as we know it.
While sampling, interpolation, and other creative uses of re-making original tracks have been through some heavy criticism over the years, there are now more established industry norms that correctly crediting an artist and re-making their original work in a new style, arrangement, or medium, can be seen as a high form of flattery. I challenge you to watch any interview of Dolly Parton’s high compliments about Whitney Houston’s cover of “I Will Always Love You”; now try not to cry when you listen to the song.
It must be conceded that obtaining permission to use another artist’s work properly is not always done by the global talent community, for reasons ranging from lack of access to instructional resources about how to go about it, or just plain stubborn refusal. Gravy seemed to go through the proper channels though. He obtained permission from Astley himself.
If the judge puts a stricter limit on the permissible uses of what we are accustomed to when it comes to musical composition licenses for interpolation, then artistic expression, in modern pop, hip-hop and even social media may change drastically. Admittedly, this outcome would deter artists from using another artist’s work without proper permission. If Gravy loses this lawsuit and is flooded with those multi-million-dollar damages, he just may need a boat. Get it? Gravy bo…. oh never mind.
Again, to make an argument for Gravy, it appears his production team proceeded in good faith to obtain permission from Astley, allegations of “conspiracy” and a suspect Instagram video notwithstanding.
However, if the court decides to rule in Gravy’s favor, they will protect the commercial privilege of artists to get permission, and continue to use licenses in creative and permissible ways. In so doing, the judge may just be putting another safeguard on creative expression for everyone, for decades to come. You know, First Amendment rights, all that. Listen to my final thoughts here.