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In 2015 I had an unusual solicitation from a recruiter on LinkedIn - as a lawyer this in my experience is a rarity unlike tech where I understand it to be common place - with interest in offering me a General Counsel position with Romero Britto's Company.

Turns out Apple engaged in discussions to license (or maybe commissioning) Britto's Art, but then Apple turned around and essentially just "knocked off" of Britto's style. They were looking to bring me in to file and handle lawsuit for copyright infringement...I declined the offer and they filed suit (I believe it ended up with a settlement).

It is easy to have strong opinions one way or another about copyright laws, but feelings of law aside, my opinion was that it was in very poor taste for a company like Apple to court an Artist like Britto and then big time him the way they did...sure art and artistic styles are a dime a dozen, but they could have used any art for their campaign, they didn't have to mimic/copy his style (I can't fathom what would even make them do that...ego I suppose). For those who are curious here is a link to an article that shows Apple's alleged infringing art:

https://www.miamiherald.com/entertainment/visual-arts/articl...

Out of interest, if someone contacts you in this manner, do you/they have an implicit attorney/client privilege? Or is it only after you come to an agreement to represent them? Or is it more of a rule of thumb?

Pop culture says that happens when the first dollar is handed over.

Privilege begins once the client and the attorney have agreed on representation.

There's attorney client privilege the whole time. It does not require money to change hands or an explicit agreement of representation before kicking in (as some others have said).

https://www.nolo.com/legal-encyclopedia/does-the-attorney-cl...

I don't believe that that link supports the general assertion you're making about there being attorney client privilege the entire time. In this case, if the above lawyer receives a message that is unsolicited, Apple should have no expectation of that privilege/privacy of the communications without some prior agreement. Apple has no way to know that the account is even directly run by the lawyer themself or an aide.

It is actually an extremely complex analysis that is dependent on the facts and the jurisdiction (applicable law). It simply isn't applicable to my communications with a 3rd party recruiter from LinkedIn which was not regarding legal advice but potential employment, nor did my comment contain any confidential information protected by the privilege.

To address some of the other responses (common myths):

1. It does not require the exchange of $1 for the attorney-client privilege to apply. For example attorney-client privilege will generally apply to free consultations and it will equally apply in the case of pro bono (free) legal services from groups such as ACLU or EFF to their clients.

2. Attorney-client privilege does not require an agreement for representation to apply (again think of a consultation before an agreement to represent where the privilege applies).

As far as a "rule of thumb" a decent summary by the ABA is:

"Nevertheless, there are some rules that generally apply to most, if not all, jurisdictions. For attorney-client privilege to apply to a communication, the general rules require that: (1) the communication be between a client and an attorney (i.e., an individual having a law degree and bar membership, and acting as an attorney for the client) or an agent of an attorney (e.g., a tax accountant, a patent agent, a forensic investigator, a technical analyst, or an expert); (2) the communication be made by the client and contain confidential information; (3) the communication be made outside the presence of a nonprivileged third party; (4) the communication be made for the purpose of securing legal advice; and (5) the privilege has not otherwise been waived. Privileged communications can be written or oral, but only communications between or among “privileged” persons are protected.

Thanks for clarifying this. I didn't mean to imply that you'd violated any trust here, I was just curious. And obviously you're being discreet with the use of a throwaway.

I lived in South Florida for a while. That art style is so recognizable that I immediately knew where the Apple ad came from, though I didn't know the artist's name.

How do you even begin to quantify the 'likeness' of one piece of art to another though? In this case it sounds easy enough since they consulted with the artist beforehand, but what if they ripped off his style without ever talking to him, how do you prove it's a copyright infringement?

>In this case it sounds easy enough since they consulted with the artist beforehand, but what if they ripped off his style without ever talking to him, how do you prove it's a copyright infringement?

As they say when the facts are not on your side argue the law, and when the law is not on your side argue the facts. I tend to agree the facts of good faith conversations/business dealings helps if not makes the entire case possible. Even if there was an "obvious rip off" the artist would likely not take on Apple if it were not for the prior good faith discussions between the Artist and Apple.

>How do you even begin to quantify the 'likeness' of one piece of art to another though?

It is a good question...Britto has a very recognizable style that is some sense is also somewhat generic (my opinion only, I am far from an art expert). Copyright/Trademark infringement cases typically come down to questions of fact and the ultimate finder of fact (jury) which is likely why fewer than 10% of cases would go that far but rather parties will elect to settle.

Very important to note that the Midler case has very narrow interpretation. From the Opinion:

> We need not and do not go so far as to hold that every imitation of a voice to advertise merchandise is actionable. We hold only that when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California.

Videos on YouTube are selling advertisements so wouldn't this apply here?

"the sellers have appropriated what is not theirs"

IANAL but I think the argument can be made that YT are the sellers here and they are protected by the DMCA

Some differences that would probably affect things in court:

1. It's parody. Parody has specific statutory protection.

2. It's clearly labelled as speech synthesis.

3. It doesn't stand in for any of the original works. The market for deep fakes is much different than that for songs or presidential speeches.

Is it a parody as understood by the law, though? How is it parodying Jay-Z? It's definitely "for fun", but it's not clear that it's making fun of or commenting on Jay-Z.

It's really not clear to me. This page cites a case where someone imitated Dr Seuss' literary voice and lost.

https://www.cotmanip.com/articles/fair-use-parody

This is the point I was going to make. For a parody fair-use defence to be valid, you need to be parodying the thing you are infringing on, and as much as people always say "oh this is parody so it's clear fair use" by the accounts I've seen (such as Penny Arcade's Strawberry Shortcake comic) that can be a difficult defence to actually mount.

The author even says that he didn't pick the texts to comment on the voice in particular, but that doing the same text (the copypasta, the Bible, etc) with each voice was just convenient.

It's one thing to impersonate someone to make fun of them, but he's not picking texts for them that way. A Bush impersonator reading the phone book isn't obviously parodying Bush unless he starts throwing in comedy Bushisms or exaggerating the voice for effect. Some Elvis impersonators are parodying Elvis but a lot are just doing a straight recapitulation of his look and voice.

No. The video in question was not. And more generally just because an ad plays along side a video does not mean the video itself is a commercial work, in the same way a newspaper or magazine can have ads alongside editorial content.

This doesn't seem to narrow the interpretation very much to me besides noting that imitating a random, unrecognizable stranger off the street would be a different situation.

It very much narrows it to impersonating a well known voice _in order to to sell a product_, therefore the individual is _due proceeds based upon those sales_. Impersonating a well known person for other reasons (parody, political or religious expression, etc.) would not fall under this precedent.

‘In order to sell’ also may not cover all business transactions if they are not the primary purpose, or at least that is what the defense will be partly based on. In other words, just because a video is monetized does not necessarily mean it falls under this ruling.

> It very much narrows it to impersonating a well known voice _in order to to sell a product_, therefore the individual is _due proceeds based upon those sales_. Impersonating a well known person for other reasons (parody, political or religious expression, etc.) would not fall under this precedent.

Isn't that already covered by the fair use doctrine though? It wouldn't be a matter of copyright to begin with in those other cases.

During Presidents’ Day car ads are run that contain impersonations of past and present presidents, they are impersonated for commercial advantage, do they get prior permission before running those radio ads?

Those two cases sound rather different based on the intent.

The ford case seemed to be ford trying to get around Midler saying no. Its clear they wanted to imitate her for the purpose of selling their cars. The current case is a mix of satire and people playing around with new technologies (with youtube advertising money being incidental).

If anything seems more like a personality rights issue than a copyright issue.

IANAL.

Just want to point out (because a lot of people seem confused) that laws requiring permission to use your likeness are not copyright. I believe they fall under the category of moral rights. Moral rights vary dramatically from country to country so it's always tricky to figure out what you are or are not allowed to do if you work internationally.

Then how are Elvis impersonators not a copyright violation?

They might be, but they're so small-time that it's not worth pursuing.

If an Elvis impersonator started to become famous or successful and popular, you can bet the EP estate would be in touch.

Or cover bands, for that matter.

TBH, I saw an AC/DC cover band in a backwater Wichita Falls, Texas bar that was way better than the original. They were far, far nuttier animals and absolutely mad.

Hey, AC/DC were young once. Their lead singer died from partying too hard ffs.

I saw AC/DC in concert too. These guys were naked, doing backflips, bouncing off the walls, and breaking shit. Unless you're a sick puppy, hard living doesn't translate to entertainment value. I don't condone or value anyone's recreational extremophilia and I think your one-sided white-knighting is off-base.

that sounds an awful lot like The Impotent Sea Snakes - https://en.wikipedia.org/wiki/Impotent_Sea_Snakes

Not exactly. They were in the spirit of and homage to the original. They might not have been original but they brought the house down.

Cover Bands do pay a royalty. It not much if I recall (Last century a housemate was a former Rush Cover band member...)

But I'm wondering who Dread Zeppelin pays.... (a mash up of Elvis and Led Zeppelin with a reggae beat, which oddly works better than you would expect.. for a little while)

I believe cover bands can actually be in violation of copyright.

It depends upon how you do it.

If you cover the song, then that's one copyright.

However, if you hire a bunch of people because they actually look and sound like the original band, that's a completely different copyright.

When you see an Elvis impersonator, do you think it is Elvis? Probably not. Elvis is dead.

If you heard an Elvis song in the background of an advertisement, would you assume it is actually Elvis? Probably, unless the ad was featuring impersonators.

Or Elvis' hypothetical twin brother. Or clone. Or close genetic laryngeal relatives.

“ 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.”

Whereas Roc Nation is making a claim that the videos infringe on Jay Z’s copyrights, as well as another claim that they impersonate him without permission.

In the Midler vs Ford case, Ford had already secured permission from the copyright holder for the performance.

It’s quite a different case.

> The appellate court ruled that the voice of someone famous as a singer is distinctive to their person and image and therefore, as a part of their identity, it is unlawful to imitate their voice without express consent and approval

So it's illegal to imitate a famous person, but not a regular Joe?

We certainly are all equal, except those who are more equal of course.

I would read it as: if you make a living with your unique voice, imitation to make profit is unlawful.

The fact that they're famous is really just a tautology. Voices that make money are generally more famous than ones nobody recognizes.

I wonder if Rich Little had to get everyone's permission.