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The irony of the quote roughly stated -- Steal my purse and you take from me only what is trash. However, steal my good name and you take from me all the riches I possess -- is that it comes from Shakespeare, regularly studied for an exercise in plagiarism. However, time changes nothing in the creative process. It was no less a scientist than Sir Isaac Newton who said he could see so far because he stood on the shoulders of giants.

While Shakespeare was a dramatist and Newton a scientist, they never had to suffer the theft of their persona, for money no less. That is a product and privilege of, and belonging to, the new age of electronically disseminated music and the promotion of musical styles and performers.

This brings us to the point of this month’s study, namely “stealing,” or as presented in the civil courts, “misappropriation,” of ideas, expression, persona, and publicity. There happens to be an overlapping of the music and the vocalist performing the music that brings the federal laws of copyright into conflict with the state laws of persona, or more precisely, the private right to commercial use of a person's name, likeness, or reputation.

The conflict arises where art meets money, or more precisely, where a “new talent,” is sitting with his or her lawyer, reading the “signing agreement,” offered by the record company. The agreement may include provisions for promotion and appearances, but the heart of the agreement will be the copyright terms, including the ownership of the musical recordings. That means the ownership of the performance and the persona of the vocalist in that performance.

The legal result is the federal copyright protection, as it exists in the copyrighted work, offers an opportunity to use a person's likeness, voice, or known mannerisms, without any additional permission. For example, a release, as would otherwise have been required under state law rights of privacy.

That’s a distinction with a difference. State law, with free speech considerations aside, protects the right of a person to be protected against unauthorized commercial use of that person’s individual persona. For example, if the argument were merely about an unauthorized imitation of a known performer’s voice for commercial gain, then, as in the case of Bette Midler, Ms. Midler would be able to enjoin and legally stop an unauthorized imitation of her voice, used without her permission, even though the imitator was not Bette or misrepresented as Bette. It might have been different if Bette was paid, but not in this case, at least not for Bette. She was asked to perform in a commercial and she refused. In a battle of wills, Bette's against the ad agency, and, upon legal advice, the commercial was made using a Bette Midler imitator. Initially it sounds too good to be true -- Bette refused so the agency got someone else to sing who sounded like Bette and was not identified as Bette. Where's the beef?

Bette saw the commercial and we can only imagine what she said, so here is her interpreted legal meaning. Bette said [she did not scream], my persona is being stolen by the Bette Midler imitator and what’s worse, without my permission and without paying me, and that’s stealing. Her argument, successfully made, was the use of an imitator was intentional, done to capitalize on Bette Midler’s fame and commercial value and that was purely a violation of state law, without any federal copyright involvement or right on the part of the ad agency.

Proceeding by the numbers, copyright protection requires a work of authorship be fixed in a tangible medium. Think of a book, play, photo, performance of any kind, dance, music, sculpture, dramatic, audio visual, even a baseball game, and especially of a computer program and the images it produces, and you have the start of a copyright infringement claim, but only if identifiable copyrighted elements are used without the permission of the copyright holder.

Enough of a fact change is sufficient to split the personality or more like morph Ms. Midler into Ms. Nancy Sinatra, associated in the minds of the public with her one and only hit single, “These Boots Were Made for Walking.” In this case it was the B.F. Goodrich Company whose ad agency saw the opportunity to associate B.F.G. with a pop icon, in this case Nancy Sinatra, and perhaps with her more famous father Frank and his well know group of “friends.”

Once again, on advice of counsel, B.F.G licensed the copyrighted song and the recording for use in a commercial. An unknown and unnamed vocalist was hired to perform the B.F.G. lyrics, this time about tires, not about “boots.” The story goes, that Mr. Frank Sinatra heard it first from one of his “friends,” maybe Sammy Davis Junior, or it could have been Peter Lawford, and said to his lawyers, “my lit’le girl’s persona is bein’ stol’n and whad’ya goin’ ta du bou’ it? Huh?”

When Mr. Frank Sinatra, the Chairman of the Board himself speaks, his high priced lawyers listen, understand, even in dialect, and respond [for a fee]. By the numbers, Frank’s lawyers understood there was no claim for copyright infringement of Nancy’s performance because Nancy signed over her rights in the sound recording and her performance of the song to the record company. Even though B.F.G. could have used a Nancy Sinatra imitator, as in Bette’s case, it didn't and I didn’t ask why. Instead, it skirted the issue by using the music played in the same tempo and style of the Nancy Sinatra performance with an unnamed vocalist signing the B.F.G. lyrics [about tires], and “that,” says Nancy’s lawyers, is enough.

In the law there must be a reason for each legal argument, as was advanced on behalf of Frank’s daughter, and this one was so good, it deserves a paragraph of its own.

It was argued, the song, “Boots Made for Walking,” had become so popularly associated in the minds of the public with Ms. Nancy Sinatra, as the daughter of the famous Frank, and anyone hearing the same or similar orchestration and vocal styling, even with different words and performed by another vocalist, not the real Nancy, would think it was Nancy singing, and as a result, B.F.G. got a virtual Nancy in the commercial and without her permission or worse, without paying her a fee.

It was worthy of the effort and it might have succeeded, but for the preemption clause in the copyright law that roughly says that if the elements of a state cause of action are the same as in a copyright infringement, then federal copyright law preempts any and all state law rights, in Nancy’s case, the California state law right of privacy and personal right to use of a persons likeness or persona. For Nancy, that was the end because her performance was preempted by copyright. Nancy’s action under the federal copyright was stopped when she assigned her copyrighted performance rights and her vocal style in that performance, to the record company who then licensed the performance to the ad agency doing “B.F.G. Tires.”

Now to the stuff copyright lawyers and Shakespeare hunters dream of -- the “what if.” What if Marlow did write the Taming of the Shrew? Not a big deal. But what if I, an intellectual property attorney, were to advise my client to license a sound recording for the sole purpose of using the vocal, as recorded, in purely commercial application and where the vocalist, (let's say a famous song stylist), is used directly in the commercial just as it came off the original recording. How is my client protected?

Protected, yes, but only if there were a complete assignment of the vocalist’s rights in the recording without reservations and if the license agreement with the owner of the copyright to the recording was clear in the commercial rights conveyed. The vocalist could have, and might have, been protected if performance rights were reserved in her copyrighted recording, if it should ever happen to be used in commercials. Then there could be an income from future royalties, perhaps coming when popularity was over and gigs were gone.

The stuff good signing agreements are made of is patience and realism. The imbalance in bargaining power between a recording company and a new music act is not unlike the imbalance between a car dealer and a customer needing credit. The customer wants the car, and the new music act wants the “deal.” Even Shakespeare wasn’t that circumspect or prescient at his signings, but he had a good lawyer named Sir Francis Bacon who got Shakespeare his money, and Sir Francis’ fee, upfront and in cash, and it was enough to build the “Globe Theatre.”