{"id":3284,"date":"2023-04-16T13:46:24","date_gmt":"2023-04-16T17:46:24","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jsel\/?p=3284"},"modified":"2023-07-25T11:40:12","modified_gmt":"2023-07-25T15:40:12","slug":"when-gravy-meets-roll-the-future-of-interpolation-in-music-recording","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jsel\/2023\/04\/when-gravy-meets-roll-the-future-of-interpolation-in-music-recording\/","title":{"rendered":"When \u201cGravy\u201d meets \u201cRoll\u201d: The Future of Interpolation in Music Recording"},"content":{"rendered":"

By: Lea Washington<\/strong><\/p>\n

What do you get when you put a roll and gravy together? A lawsuit apparently. The \u201cRickrollin\u2019\u201d star Rick Astley is suing upcoming rapper Yung Gravy and his team. Gravy\u2019s song \u201cBetty<\/a>\u201d is the focus of this dispute, as it borrows from the song \u201cNever Gonna Give You Up\u201d which boasts 1.3 billion views on YouTube. Astley\u2019s lawyers say, \u201cIn an effort to capitalize off of the immense popularity [defendants] conspired to include a deliberate and nearly indistinguishable imitation of Mr. Astley\u2019s voice throughout the song.\u201d Astley is claiming<\/a> Gravy and team\u2019s actions were theft since, \u201cDefendants were unable to obtain a license for a sample.”<\/p>\n

Astley\u2019s claims in dispute are about the alleged use of his \u201cvoice\u201d in \u201cBetty\u201d, not the instrumental (\u201cnon-vocal\u201d), used throughout the song. Importantly, this case includes issues of likeness, impersonation, and misappropriation, but we\u2019ll talk about the music issues here. My prediction is this case will come down to the question of what \u201cscope of use\u201d Gravy secured to use \u201cNever\u201d.<\/p>\n

Even though privileged case details aren\u2019t available, it is known that Gravy secured the right to use the underlying musical composition<\/a> of \u201cNever Gonna Give You Up\u201d in order to interpolate the song. Although Yung Gravy had permission to use the underlying composition of Astley\u2019s tune, he did not have permission to use the original sound recording.<\/p>\n

Astley\u2019s 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 \u201cNever Gonna Give You Up.\u201d<\/p>\n

Since Astley only granted Gravy permission to use the underlying composition, it should be emphasized that the permission Gravy got for \u201cBetty\u201d is not really a sample\u2014just 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<\/a> from the copyright holder when it comes to how they use <\/em>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.<\/p>\n

Most of Gravy\u2019s song \u201cBetty\u201d fits the traditional characteristics of interpolation<\/a> in today\u2019s music landscape. According to the U.S. copyright office, \u201can interpolation involves taking part of an existing musical work\u2019s composition (as opposed to a sound recording) and incorporating it into a new work.\u201d This is distinct from a sample, which is use of part of the original recording.<\/p>\n

But, right after \u201cBetty\u2019s\u201d intro, listeners with ears attuned to modern hip hop\u2019s trends first hear what they were expecting: a sample! \u00a0Or is it? Upon first listen, one may think, as did I, that what you\u2019re hearing is just a recording of Rick Astley\u2019s original rick-roll hit played slightly pitched down. Listen again! The instrumental of \u201cNever Gonna Give You Up\u201d most likely is a \u201csound alike\u201d, or a \u201cre-record\u201d. 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<\/a>, also known as Popnick<\/a>. This is not a sample, because samples utilize the original recording.<\/p>\n

It\u2019s true that \u201cBetty\u201d uses the \u201cNever Gonna Give You Up\u201d instrumental hook throughout, with a rap performance layered<\/em> on top, just like gravy<\/em> (I couldn\u2019t resist). Yung Gravy has some clever rhymes thrown in too. But since Gravy\u2019s team allegedly did not have permission to use the sound recording of \u201cNever\u201d, the music you hear is a note for note<\/a> re-record. It can be inferred that Astley expected Gravy to remake his song\u2019s instrumental and add the rap on top as interpolation. This all accumulates to interpolation at it\u2019s finest! \u00a0With a musical composition license, remember, Gravy doesn\u2019t need permission to re-record an exact copy of our Rickroll favorite tune.<\/p>\n

This trick has been used for decades by commercial producers, movie makers, and even you, if you\u2019ve 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\u2019t recognize live covers? One reason is because an artist\u2019s 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,<\/a> it\u2019s sonically nearly impossible, especially with voices<\/a>. \u00a0So, when Astley\u2019s attorney alleges<\/a> that Gravy \u201cconspired to include a deliberate and nearly indistinguishable imitation of Mr. Astley’s voice throughout the song\u201d, we must put an emphasis on \u201cnearly\u201d, because it is not the same recording. Musically speaking, Gravy and team are probably acting within the scope of their license.<\/p>\n

Now remember when I said that \u201csound alikes\u201d are never the same as the original recording?<\/p>\n

As far as vocals go, most of Popnick\u2019s performance isn\u2019t even copying the vocal notes from \u201cNever Gonna Give You Up.\u201d In fact, the only nearly verbatim re-record of the notes Astley actually sang <\/em>in \u201cNever Gonna Give You Up\u201d is in the intro of \u201cBetty\u201d. The rest of Popnick\u2019s performance is \u201cad libs\u201d throughout the recording that are nods to Astley\u2019s characteristic sound. Furthermore, these ad libs<\/a>, even though they are very \u201cAstley-esque\u201d were never sang by Astley in the original recording of \u201cNever Gonna Give You Up.\u201d \u00a0They are just toppings to a meal, like gravy<\/em>. With Gravy\u2019s license, he technically has musical permission to do this too, after all, people who make covers<\/a> ad lib on vocal parts.<\/p>\n

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 \u201cre-record\u201d 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.<\/p>\n

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<\/a> of Dolly Parton\u2019s high compliments about Whitney Houston\u2019s cover of \u201cI Will Always Love You\u201d; now try not to cry when you listen to the song.<\/p>\n

It must be conceded that obtaining permission to use another artist\u2019s 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.<\/p>\n

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\u2019s work without proper permission. If Gravy loses this lawsuit and is flooded with those multi-million-dollar damages<\/a>, he just may need a boat. Get it? Gravy bo\u2026. oh never mind.<\/p>\n

Again, to make an argument for Gravy, it appears his production team proceeded in good faith to obtain permission from Astley, allegations of \u201cconspiracy\u201d and a suspect Instagram video<\/a> notwithstanding.<\/p>\n

However, if the court decides to rule in Gravy\u2019s 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<\/a>.<\/p>\n

\n

\n

\n

\n","protected":false},"excerpt":{"rendered":"

By: Lea Washington What do you get when you put a roll and gravy together? A lawsuit apparently. The \u201cRickrollin\u2019\u201d star Rick Astley is suing upcoming rapper Yung Gravy and his team. Gravy\u2019s song \u201cBetty\u201d is the focus of this dispute, as it borrows from the song \u201cNever Gonna Give You Up\u201d which boasts 1.3 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