Guetta is not saying it's the real deal. The creativity, is his usage of the tools available. He could have hired an impersonator, it's the same thing (in my opinion).
But that’s in a commercial setting, this is during a musical performance. The audience was not tricked into showing up to an Eminem performance and were not tricked into thinking that Eminem was on stage at any point. This is protected speech.
Sure, but in the Bette Midler case, I was talking about a literal television commercial:
Midler pursued a common law judgment against Ford for using her distinctive voice without her authorization. The appellate court pondered the question of whether or not an artist's voice is a distinctive personal feature over which a person has controlling rights from appropriation. Midler was not seeking damages for copyright infringement of the song itself, but rather for the use of her voice which she claimed was distinctive of her person as a singer. The recognition of Midler's voice in the commercial was found to be the intentional motivation and a major feature of the commercial.
This is a common law right to publicity. This is our common law right to be in control of our likeness.
David Guetta is being paid but he is not being paid by the promoters or the audience because he says he is Eminem so there is no reasonable claim to a violation of Eminem's common law right to publicity.
Whereas with Midler, the commercial production crew was seen by the jury to be paying an artist to convince an audience that Bette Midler was endorsing the product.
Chiming in here, even if he was not being paid for performing this song here, the tweet and publicity still serve to market his work, right? How is that not commercial? I mean, this is to sell more tickets in the future, one would assume.
According to a quick google search, even cover bands performing live are required to pay royalties to the original artists whose songs they're performing.
Maybe there's some loophole when using an artist's likeness while changing the actual music and lyrics, I don't know.
But "protected speech" isn't meant to be a way to make money off of other people's work.
Curious what part of "Midler v. Ford Motor Co" you think wouldn't apply to a musical performance.
Do I need to ask permission to impersonate Eminem during a comedy performance? How about during a musical performance?
The answer is no. This is fair use 101.
If you cover a song of his while doing an impersonation then this is covered by the performance fees the venue you’re playing at pays every year to ASCAP and BMI.
Satire protects you only if you needed the thing imitated to make your point [and you have $$$ for lawyers to argue that]
The example I like (even though Weird Al always obtains permission so doesn't need Free Speech protection) is "Smells Like Nirvana" compared to "Fat".
Smells Like Nirvana is satire. The thing criticised is Nirvana's "Smells Like Teen Spirit", and the wider Grunge phenomenon it exemplifies. Al's song talks about how Kurt's lyrics are mumbled and hard to understand, "It's hard to bargle nawdle zouss / With all these marbles in my mouth", and about how it's too loud so it'll annoy your mom and dad, "We're so loud and incoherent / Boy, this oughta bug your parents". This can't work if Al uses Mariah Carey's "All I Want For Christmas" instead of Teen Spirit.
"Fat" isn't satire. Michael Jackson wasn't obese or even overweight, and his song isn't causing people to eat too much junk food, Al's song is just using the outline structure of Jackson's "Bad" because that fits and his new song is funny. If his lyrics had fitted better to Rick Astley's "Never Gonna Give You Up" that would have been fine.
No, you’re not correct. Cover bands don’t need to ask permission. The venues they play at should be writing down the songs they’re playing and submitting them to PROs, but the bands don’t need to do anything.
> originals that the cover band did in the style of anyone else
Interesting. I guess you consider the use of Eminem’s voice to be an ‘in the style of’. I think, being trained on Eminem songs, it’s more like a sample.
Fair use is relevant for parodies that are not subject to copyright or royalties so it is indeed relevant, but you're right, the issue with Bette Midler is the common law right of publicity, of which David Guetta is not in the wrong because no one was tricked into thinking that he was Eminem. Even if David Guetta's DJ sets became nothing but Eminem songs it would be fine because he would still not be tricking anyone into thinking that he was Eminem.
> According to a quick google search, even cover bands performing live are required to pay royalties to the original artists whose songs they're performing.
It's more than that. If you were part of a band and now you are solo (plenty of cases), you need to pay your old band if you play an old song you were part of (unless you own 100% of the lyrics and music rights, which is rare).
By the way, I am totalyl OK with this deal/agreement/way of doing things.
