DePaul Journal of Art, Technology & Intellectual Property Law

Volume 3 Issue 1 Fall 1992 Article 4

Lip Sync Disclosure Legislation

Michael Bennett

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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

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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 S3(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.

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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. May 13, 1992 and will take effect at the beginning of Lawmakers throughout the country responded by 1993.1 It regulates the use of prerecorded vocals at "any musical performance, introducing bills which required promoters, venues show, concert or other and ticket agents cultural event which includes vocal performances."" It to disclose when the vocals per- 4 formed at live concerts were in fact prerecorded." The imposes a duty upon concert promoters,25 venues, bills, termed by one legislator "Milli Vanilli" bills,9 and ticket agents" to disclose to the public that the were introduced at or around the time of the confes- lead vocals will be lip synced. sion by Pilatus and Morvan. Lawmakers were motivat- The statute places most of the burden upon the ed by two concerns: 1) consumer protection and 2) concert promoter. The promoter has the duty to dis- complaints from musicians. close when he knows that all or a portion of a per- Many state representatives equated lip syncing former's vocals are prerecorded." The promoter then with consumer fraud. As Massachusetts state represen- must give written notification to the venue and all tative Kevin Poirer put it, "If you pay real money for a ticket agents selling tickets to the performance.' The concert, you ought to get real music in return." 0 venue and all ticket agents must then disclose the use Legislators said that even if complaints were minimal, of prerecorded vocals to the public. The venue must "print on the face of the public policy demands disclosure. "It's not censor- ticket" a conspicuous disclo- ship," said New Jersey state assemblyman Neil M. sure.' The venue also must provide prominent disclo- Cohen, "All [this legislation] does is inform the pub- sures in all of its advertising." Similarly, the ticket lic."" agent must have disclosure notices: 1) for walk up However, concert promoters said that concertgo- sales, with signs placed in prominent places, indicat- ers were happy with the status quo. Carl Freed, exec- ing the use of prerecorded vocals; and 2) for phone utive director of the North American Concert sales, with salespeople providing a verbal disclosure Promoters Association, asked, "If [these laws] are to before accepting a ticket orderY0 Such disclosures protect the consumers, why haven't I heard from would read: The lead vocals will not actually be sung 1 any?"'2 Critics of the bill said that lip syncing is justi- by [lead singer] during the show. 2 fied because it allows contemporary performers to do Violation of the statute is a misdemeanor. New complex dance routines on stage." Freed estimated Hampshire's maximum penalty for misdemeanor con- that approximately 90% of all dance, pop and rap acts victions is a $1000 fine for individuals and a $20,000 rely heavily on prerecorded music tracks. 4 According fine for corporations or unincorporated associations." to Freed, fewer rock and country acts use prerecord- ed tracks, while jazz, blues and bluegrass performers, B. Bills from other states who do not have complex dance routines, rarely use The bills from other states have provisions that prerecorded music." either clarify vague portions of the New Hampshire Such estimates bother musicians. Some musicians statute or broaden the scope of its protection. For are upset with the lack of artistry involved in lip sync- example, the New Hampshire law states that if a con- ing at concerts. George Harrison, former member of cert promoter "knows" that a performer lip syncs, the Beatles, said that performers who lip sync in con- then he must tell this to the venue and the ticket agents. 4 The statute fails to define what the term https://via.library.depaul.edu/jatip/vol3/iss1/4Fall, 1992 23 2 Bennett: Lip Sync Disclosure Legislation

"knows" means-it could be a reasonable suspicion, least to do with lip syncing-the promoter. or it could mean the promoter has actual knowledge. By contrast, the Illinois and Massachusetts bills would A. Consumers require the promoter to inquire if the performer is Despite their good intentions, lip sync laws may using prerecorded vocals. 5 In Illinois, the inquiry be unnecessary because of the threat of litigation by must take place prior to the sale of tickets, whereas consumers against performers. In Illinois, a settlement Massachusetts requires an inquiry as soon as reason- was reached in a class action lawsuit against Milli ably possible.-d The Massachusetts bill also relieves Vanilli.4 ' The plaintiffs sued Milli Vanilli and Arista the promoter from any liability if the promoter Records, basing their claims under Illinois consumer inquires and is given either false or mistaken informa- protection and deceptive trade practice laws.d The tion from the performer' 7 Legislation proposed in class consisted of all persons nationwide who bought California extinguishes promoter liability if the pro- Milli Vanilli recording, merchandise or concert tickets. moter makes a good faith effort to determine if a per- The settlement required Arista Records to send book- former is lip syncing." lets with rebate coupons to record stores, for purpos- Many state bills are broader in scope than the es of consumer availability. The consumer had to New Hampshire law. Whereas New Hampshire's send in the coupon along with a proof of purchase of statute applies only to vocals, some bills attempt to a Milli Vanilli item to receive a rebate on her next regulate prerecorded instrumental performances too. purchase of a cassette or compact disc. 7 For example, bills in Massachusetts, Michigan, Illinois The threat of future lawsuits and large settlements and California would require promoters, venues and may deter performers from lip syncing. Indeed, none ticket agents to disclose when a performer is using of the bills precludes a consumer from filing a civil tapes instead of playing its instruments." California's suit against a performer."" But there is no guarantee bill recognizes the increased use of computerized that consumers will ultimately prevail in such litiga- instruments in pop music, and allows them to be tion.49 Thus, disclosure on tickets and in advertise- used in live concerts without requiring disclosure to ments provides a more consistent method of public the publici ° information. Criminal statutes, like those discussed The New Hampshire law only requires disclosure above, may provide a more effective means of deter- when all lead vocals are prerecorded."' By contrast, ring lip syncing. most other bills require disclosure when only part of On the other hand, some argue that the public the performance is lip synced. However, the prefers seeing the performers dance just like they do Massachusetts bill will allow for limited use of prere- on MTV." As entertainment reporter David corded music. The bill requires disclosure if a per- Handelman points out "[w]hat this lofty debate former uses more than five minutes of prerecorded ignores is the fact few consumers would pay and hear music., Madonna sing lousily."" If consumers do not want to The proposed penalties are similar, with two see a performer lip sync, they will not buy tickets the exceptions. The Illinois and Michigan bills both allow next time the performer comes to town. If so, the for a maximum fine of $50,000 for promoters.4 The disclosure on a ticket will be as effective as the sur- Michigan bill classifies a violation as a felony."1 geon general's warning on a pack of cigarettes. However, lip sync laws will inform the consumers IMPACT that do care, even if such consumers are in the minor- The impact of the New Hampshire law will be ity. The law does not overburden the promoter, who slight, unless it leads larger states like California and must only make a minimal inquiry. Furthermore, the New York to pass their bills. This minimal impact cost of including the disclosure on tickets and adver- may be fortunate. tisements is insignificant. The bills were designed to protect consumers. However, the bills may not be necessary because: 1) B. Musicians consumers may be able to go to court if they feel Musicians now benefit from advanced technology, they have been unlawfully deceived; and 2) con- which allows them to use computers and electronics sumers may not be concerned about lip syncing. to simulate the sounds of familiar instruments." These Musicians were also supposed to be protected by the devices are used on many popular recordings. The bills. Yet most bills fail to acknowledge technological use of such electronics has been seen by some as advances in music. Many sound recordings employ analogous to the evolution from typewriter to word complex electronics and computers, but the bills are processor. 4 Yet, with one exception, the bills do not not clear as to whether their use in concert would indicate if the use of a preprogrammed computerized require disclosure to consumers. Furthermore, the instrument represents prerecorded music, therefore bills do not recognize practical, non-deceptive rea- requiring disclosure if used on stage. sons for using prerecorded music. Meanwhile, the Only the California bill addresses technological burden of disclosing is put on the party who has the advances. It does not require disclosure of "[mlusic

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which is played by a performer during a live perfor- a promoter will have difficulty following the law. If a mance on any digitally recorded or synthesized prere- performer uses a synthesizer in concert, a promoter corded musical instrument, equipment, or other will not know if its use amounts to prerecorded music device."" The California bill recognizes that if a which must be disclosed. Furthermore, if the per- recording utilizes a computer program or synthesized former uses a recording for only a minute or two, a instrument, a consumer hearing that same program or promoter may have to disclose and then risk synthesizer in concert is not being deceived. decreased ticket sales due to concerned consumers. If Bills that do not recognize technology may actual- the promoter has the burden to inquire, notify and ly prevent some performers from touring. These bills disclose, the laws need to be more narrowly tailored need to better define what constitutes an unautho- to establish exactly when a promoter should be liable. rized use of prerecorded music to protect these artists. For example, the group the Rascals used horns on CONCLUSION some of their records, although none of their mem- Milli Vanilli put lip syncing and related legislation bers play horns. Because the Rascals cannot afford to in the spotlight. However, there is no evidence that take a horn section on the road, they utilize a synthe- increased public attention has led to a decrease in sizer to play the horn parts." Keith Beccia, the performers using prerecorded music instead of their group's manager, said that the group would lose own talents. The bills drafted to prevent lip syncing money if the disclosure laws forced them to hire a have put the burden of disclosure on concert promot- horn section." The only other alternatives would be ers, rather than performers. The promoter must find to avoid states that had disclosure laws or to stop out if a performer is lip syncing, then notify the con- playing the songs with horn parts. 8 cert venue and ticket agents. Then the promoter, If the point of the lip sync bills is to insure that venue and ticket agents must conspicuously disclose the audience hears the artist perform, groups like the to the public that the performer will be lip syncing. Rascals should be exempted from disclosure. A dis- New Hampshire is the first state to sign such a bill closure on a ticket indicates that someone on stage is into law. faking their performance, and this may deter con- New Hampshire's act may revive dormant lip sync sumers from going to see a band such as the Rascals. bills in other states. If this does happen, lawmakers Only California's bill would exempt the Rascals from must consider whether consumers want and need disclosure. The other bills that cover instrumental per- such protection, or if alternatives such as litigation formances must clarify when the use of prerecorded will suffice. Lawmakers should also clarify what a music is acceptable. The bills should guarantee that deceptive use of prerecorded music is, so that musi- when a performer is on stage, he is performing his cians who do not intend to deceive consumers will part live. Otherwise, bands like the Rascals, who do not be prevented from touring. As it stands, the New play their instruments on stage, will be penalized for Hampshire law is not narrowly tailored, and may not being able to afford extra musicians. leave both consumers and musicians unprotected. Michael C. Bennett C. Promoters Promoters are now at risk if a performer lip syncs 1. H.B. 1430, 152nd Leg., 1992 New Hampshire Law. 2. id. and the promoter failed to disclose this to consumers. 3. Id. Some feel this is wrong. Promoter Carl Freed points 4. Richard Harrington, Pop Duo Milli Vanilli Didn'tSing Hit out that "Ithe promoter has minimal, if any, creative Albur Grammy Winners Lip-synced tbeirAct WASH. POST, Nov. 16, input into a performance" yet promoters stand to be 1990, at Al. punished." While this is true, the only alternatives to 5. See Siegel v. Pilatus, No. 90 Ch 11439 (Cir. Ct., Cook County 1991). having the promoters police performers is to have the 6. Milli Vanilli Bills Proposed in Several States, ENw. mIG. state do it (which would be time consuming) or rely REP., Jan. 28, 1991. on consumer lawsuits (which are even more costly 7. The Perfect Gentlemen are a teenage vocal act on Sony and time consuming). Because such bills do not place Records. See Salvatore Caputo, Forget My Lips: This is a Pop Show, Live Music Gets Unpluggedfrom Concerts, ARiz. RaPUtuc, Oct. 30, the burden on the true wrongdoer-the performer- 1990, at B4. they should, like the Massachusetts and California 8. Jeff Jolson-Coburn, Concert Business Draws Crowd of bills, allow the promoter to avoid liability when he or Regulatory-mindedLawyes, THE HOLLYWOOD REP., July 17,1991. she makes a reasonable inquiry.' 9. Spencer Hunt, GANNET NEWS SERVICE, Mar. 6, 1991. (Minois Representative John Matijevich referred to a proposed lip Lip sync disclosure bills could further ease the sync law as a *Milli Vanilli bill.') burden on promoters by defining prerecorded music 10. See supra, note 6. and then setting limits on how much can be legally 11. Edna Gundersen, Style over Sound Pop Stars Take used. Only the Massachusetts bill draws a line, requir- CannedMusic on Tour, USA TODAY, May 25, 1990, at ID. 12. David Handelman, It's LiP-Synced, But is it Fraud, ST. ing disclosure if more than five minutes of prerecord- Louis Posr-DIsPATcH, Sept. 4, 1990, at 4D. ' ed music is used.6 And only California adequately 13. Gundersen, supra note 11. defines prerecorded music.69 Without such distinctions 14. Handelman, supranote 12. https://via.library.depaul.edu/jatip/vol3/iss1/4Fall, 1992 4