By: Cooper Cuene

Yung Gravy’s biggest hit to date has clocked over 34 million YouTube views, nearly 200 million Spotify plays, and has been featured in over 300,000 TikTok videos as of this February. The most prominent feature of the song, titled “Betty (Get Money),” is a repeated sample of Rick Astley’s 1987 hit “Never Gonna Give You Up.” What is less apparent is that the voice singing the sampled track is not, in fact, Astley’s. Rather, Gravy – whose legal name is Matthew Hauri – and his producers carefully impersonated Astley’s voice after being unable to secure the licensing rights to Astley’s original vocals. Unsurprisingly, Astley has sued.

The complaint alleges a mix both of California state and Federal law claims, but a careful reader would notice one type of claim missing. Unlike other recent high-profile music industry litigation, Astley does not allege that his copyright on the song has been infringed. Rather, Astley is suing Gravy for a number of other causes of action centering around the impersonation of his voice. While Gravy had obtained a license for the underlying music and composition, the license did not allow Gravy to use Astley’s voice on the original recording. Rather, Gravy’s producer Nick Seeley spent weeks auditioning vocal impersonators before eventually recording the part himself. 

The results of these efforts? Quite good, as Astley’s complaint takes pains to illustrate. Wikipedia, Billboard, allmusic.com, songfacts.com, whosampled.com, and other music outlets all wrote that “Betty (Get Money)” had directly sampled Astley’s original recording instead of impersonating it. Beyond passively going along with appearances, Gravy seemed to reinforce that Astley had participated. In his complaint, Astley alleges that Gravy had repeatedly suggested on social media that Betty (Get Money) was created with Astley’s blessing and involvement.

Astley focuses extensively on the public’s actual belief that his voice had been used because his claims essentially assert that Gravy had wrongfully used Astley’s voice, not the original recording of “Never Gonna Give You Up”. These claims include false designation of origin under the Lanham Act, an illegal appropriation of Astley’s property interest in his identity, and a violation of Astley’s right of publicity under California’s common law – a right that protects Astley’s right to “exploit his proprietary interest in his voice” as he pleases. Under Astley’s theories, he has a right to the commercial use of his identity and its defining characteristics, specifically his voice. When Gravy impersonated Astley’s voice despite knowing that he did not have the right to its use, he deprived Astley of his ability to commercialize his identity and voice, therefore causing consumer confusion about the projects that Astley had given his blessing and lent his performance to. 

The case law surrounding wrongful impersonations of musician’s voices is concise yet impactful. Midler v. Ford Motor Co. is the only case cited in the complaint, and its facts track closely with those alleged by Astley. In Midler, an advertisement for new Ford cars planned to use songs from the 1970s sung by their original artists. When Bette Midler – among others – refused, Ford’s ad agency used “soundalikes” to mimic the sound of her voice from her original recording of “Do You Want to Dance?” In a 1988 decision, the 9th Circuit ruled that because Midler’s distinct voice was part of her identity, Ford’s imitation of it without permission was unlawful. Upon remand, a jury awarded Midler $400,000, worth close to $1,000,000 today.

While Midler is the voice impersonation case most on point for the facts involved in this case, other relevant cases reach similar results. For example, in Lahr v. Adell Chemical Co., the 1st Circuit held that a commercial that impersonated a comedian’s voice without permission gave rise to an unfair competition cause of action. The court reasoned that the ad saturated the market for the comedian, reasoning that it could negatively impact the demand for that comedian’s unique voice and delivery in other endorsements. Midler distinguishes Lahr because Midler did not typically perform in commercials, but Astley’s market for licensing future samples could be saturated by Gravy’s use of his voice. Beyond Lahr, the case of Motschenbacher v. R.J. Reynolds Tobacco Co. provided an earlier precedent for recognizing an individual’s proprietary interest in their own identity. In this 1974 opinion, the 9th Circuit held that a tobacco company’s permissionless use of a famous racer’s defining characteristics and car in an advertisement gave rise to a cause of action. Notably, both the Motschenbacher and Lahr opinions focus on the extent to which the characteristics of the victim are identifiable by those viewing the product that imitates them.Based on the precedent stemming from Midler and other cases, Astley’s case against Gravy is strong. Like in Midler, Gravy had tried and failed to obtain a license for the original artist’s voice before being forced to use an impersonation instead. The impersonation used by Yung Gravy was actually mistaken for Astley’s voice in many cases, meaning that the focus on identifiability in Lahr and Motschenbacher will weigh in favor of Astley should the case go to trial. Further, although Lahr is not cited in the complaint, the fact that the use of Astley’s voice may saturate the market for future use of his voice as a sample would also support Astley’s claim based on Lahr’s reasoning. Regardless of the support found in other cases, however, the factual similarity to Midler should alone, in all likelihood, motivate Gravy to settle rather than take the case to trial. Unfortunately for Gravy, once it became clear that Astley was never going to give up the rights to his vocal performance, he should have known that his efforts to circumvent Astley’s wishes would only let him down.