Lip Sync Disclosure Legislation
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DePaul Journal of Art, Technology & Intellectual Property Law Volume 3 Issue 1 Fall 1992 Article 4 Lip Sync Disclosure Legislation Michael Bennett Follow this and additional works at: https://via.library.depaul.edu/jatip Recommended Citation Michael Bennett, Lip Sync Disclosure Legislation, 3 DePaul J. Art, Tech. & Intell. Prop. L. 22 (1992) Available at: https://via.library.depaul.edu/jatip/vol3/iss1/4 This Legislative Updates is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Journal of Art, Technology & Intellectual Property Law by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. Bennett: Lip Sync Disclosure Legislation 52. Id. See Gilliam v. American Broadcasting Co., Inc., 538 86. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952). F.2d 14 (2d. Cir. 1976). 87. Under the terms of the Foreign Agents Registration Act 53. ENr. LrrG. REP., supra note 13. These rights would also (FARA)(22 U.S.C. SS 611-621 (1988)), any agent who intended to potentially modify the first-sale doctrine 17 U.S.C. S109 (West 1977 transmit films, among other documents, for public viewing in the & Supp. 1992). United States, was required to register the films with the U.S. 54. ENr. LITIG. REP., supra note 13. Attorney General and each film was to bear a label which included 55. S. 2256, supra note 4, at S 3(cX1)(DXii). the term "political propaganda." The Supreme Court found that the 56. See Kwal1, supra note 51, at 24 n.89. labeling requirement under FARA placed no excessive burden on 57. See generally S. 2256, supra note 4, at 5 3. protected speech nor did it limit the public's access to the films, but 58. 15 U.S.C.A. S 1125(aXl) (1988). the labeling merely "required the disseminators of such material to 59. Gilliam, 538 F.2d 14. See also King v. Innovation Books, make additional disclosures that would better enable the public to 976 F.2d 824 (2nd Cir. 1992) (the court found that, under the evaluate the import of the propaganda." Meese v. Keene, 481 U.S. Lanham Act, the author's name and reputation were his major 465, 480 (1987). assets which he had the right to preserve from wrongful attribu- 88. Meese v. Keene, 481 U.S. at 475. tion). 89. See Interstate Circuit v. Dallas 390 U.S. 676 (1963) (Court 60. Gilliam, 538 F.2d at 24. held a prior restraint was created by a system where an administra- 61. Id. at 18. tion board classified films as "suitable for young people" or "not 62. Id. at 25. suitable for young people"). See also Bantam Books, Inc. v. 63. Id. at 19. Sullivan, 372 U.S. 58 (1963) (Court held as a prior restraint a sys- 64. Follett v. New American Library Inc., 497 F. Supp. 304, tems whereby a commission reviewed "material tending to corrupt 313 (S.D.N.Y. 1980). youth"). 65. The label would denote: THIS FILM IS NOT THE VER- 90. David Kelly, Bush Opposes Film Labeling Bill, THE SION ORIGINALLY RELEASED. Followed by a brief description of HoLLYWOOD RFpoama, March 6, 1992 (citing letter dated March 5, the number of minutes edited or the colorization process used. S. 1992 from Wendell Willkie II, general counsel of U.S. Commerce 2256, supra note 4, at S 3(6)(a). If necessary, a subsequent line will Department). inform the viewer: The director and cinematographer object to this 91. Id. Several members of Congress share the Bush alteration because it removes visual information [or] ...eliminates Administration's concern that the Disclosure Bill is not in the inter- the black and white photography and changes the photographic est of the public but merely in the interest of Hollywood's players. images of the actors. Id. at S 3(cX2XB). See also Senate Bill Would 92. Sukow, supra note 76; commentary of Howard Amend Lanham Act to Protect Moral Rights of Film Artists, BNA Sherman, Senior V.P., National Association of Broadcasters. Wash. Insider, Feb. 27, 1992, at A-13. 93. S. 2256, supra note 4, at S 3(cX1)(FXi). 66. S.2256, supranote 4, at S 3(cXI)(B) and S 3(cX2)(B). 94. Id. at 5 3(cXl)(DXii). 67. Id. at S 3(cX1)(DXii) (artist's failure to respond relieves 95. Id. at 5 3(cX2XB). distributor of liability). 96. Id. at S 3(cXl)(B)(i) (requires distributors to make a 68. Id. at S 3(cX4). good faith effort to contact the artist); Id. at 5 3(cX2)(A) (injunctive 69. Id. at 53 (cXIXC)(i-ii). relief is possible for an artist who believes he is likely to be dam- 70. John Harding, Missing the Big Picture: How Video aged by a film released in violation of the Act). Cramps Film's Stylg THE WASH. Posr, May 17, 1992, at G1. 97. Vm Eo WEex, Supra note 38. 71. Id. 72. Id. 73. 138 CONG. REc. S2215 (daily ed. Feb. 25, 1992). Lip Sync Disclosure 74. Id. 75. David J. Fox, PowerPlay for Artists' Rights, LA. TimES, Legislation Dec. 6, 1991, at Fl. 76. Randall M. Sukow, DGA Pans Altered States of Movies, BROADC SnNG, March 9, 1992, at 14 (quoting film director Martin INTRODUCTION Scorsese testimony before the House Copyright Subcommittee, On January 1, 1993, New Hampshire will be the March 5, 1992). 77. Id. Echoing Scorsese's belief is director and producer first state to have a lip sync law., The statute requires George Lucas who stated, "It's not going to be too long in the disclosure to consumers whenever a vocalist is lip future before an actor, who has become unacceptable for... poli- syncing to prerecorded music rather than singing the tics or marketability, might be electronically replaced by another vocals live.? This disclosure is to be made by: 1) con- actor." Fox, supranote 75. 78. Members of the Committee for America's Copyright cert promoters; 2) venues, from the largest stadium to 3 include, among others: the Motion Picture Association of America, the smallest dub, and 3) ticket agents. Paramount Communications, the Recording Industry Association of Similar bills have been submitted in other states, America, Turner Broadcasting, and the American Film Market despite criticism from those in the industry. Some Association. Fox, supra note 75. 79. Harding, supra note 70. argue that because satisfied consumers outnumber the 80. David Kelly, Film, Media CoalitionCbarges Pic Labeling unhappy consumers, the laws are unnecessary. is 'PriorRestraint, BPI EMERTAINMEm NEws WIRE, Sept. 18, 1991. Others complain that some of the bills, which cover The CACC is wary of a film artist's "personal preferences" that prerecorded instrumental performances in addition to could delay or thwart the availability of film in video form, thus delaying the economic benefit to the copyright holder. Id. vocal performances, are both vague and overly broad 81. VSDA Notes Objections to Proposal to Label Copies of and fail to take into account technological advances Altered Films', Bi.tBoARD, March 21, 1992, at 66. in musical instruments. 82. Harding, supra note 70. This update describes the circumstances which 83. Film Labeling Legislation is Debated Before Senate led to the drafting Subcommittee, BNA DAiLY REPoRT FOR ExEcuTnvEs, Sept. 23, 1992, at of lip sync legislation. It then ana- d37. lyzes the New Hampshire law and the bills of other 84. Marshall, supra note 39. states and the possible impact such laws may have on 85. Kelly, supra note 80. all the affected parties. Published22 by Via Sapientiae, 2016 Journal of Art & Entertainment Law 1 DePaul Journal of Art, Technology & Intellectual Property Law, Vol. 3, Iss. 1 [2016], Art. 4 BACKGROUND cert are performing "cheap music" that has "certainly lost a lot of human feel."' 6 Musicians are worried that The focal point of the lip sync controversy was 7 the group Milli Vanilli. Rob Pilatus and Fab Morvan, jobs are disappearing, with tapes replacing people. who allegedly fronted the pop music group, appeared Accordingly, seven state chapters of the American on album covers, in music videos and at live concert Federation of Musicians support lip sync disclosure performances. It was rumored that they lip synced legislation. 8 their vocals during live concerts. On November 15, Currently, New Hampshire is the only state to 1990, Pilatus admitted that not only did Milli Vanilli pass such a law. In most states, the proposed legisla- lip sync their vocals in concert, but they did not even tion has stalled in various committees."9 In California record the vocals heard on their recordings.4 After and Pennsylvania, bills have passed in one house of their confession, the duo was stripped of its Grammy the legislature, and then stalled.2 Award for Best New Artist and subsequently became the target of numerous class action suits.' LEGISLATIVE PROVISIONS Other performers, such as Janet Jackson, New In substance, the proposed lip sync disclosure Kids on the Block, Madonna and Paula Abdul, were bills are similar. The New Hampshire bill is the only accused of lip syncing vocals in concert. Some admit- one to become law, and an analysis of it provides a ted they lip synced.6 Others didn't have to. During a useful tool for comparison to the other bills. concert, the lead singer for the group the Perfect Gentleman was hit in the face with a pie and A. The New Hampshire Statute dropped his microphone while the lead vocal was The New Hampshire bill was signed into law on 7 still being heard by the audience.