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Mark C. Samples

Mark C. Samples is Assistant Professor of Music and Coordinator of Music History at Central Washington University. He currently researches the role of commercialism in music, with an emphasis on the branding of music and musicians after 1800, from Jenny Lind to Joan Baez, Tom Waits, and Sufjan Stevens. His essay, “Timbre and Legal Likeness: The Case of Tom Waits,” is forthcoming in the book The Relentless Pursuit of Tone: Timbre and Popular Music (Oxford University Press), edited by Robert Fink, Mindy LaTour O’Brien, and Zachary Wallmark.

“Privileging the Vocal Instrument: Instrumental Timbre and Legal Likeness”
Entertainment law (the right of publicity and privacy) protects a singer from having his or her voice impersonated in a commercial without the singer’s consent, provided that voice is 1) distinctive, and 2) widely known. Both Bette Midler and Tom Waits have won legal battles to protect their vocal sounds from misappropriation. Can an instrumental timbre be as identifiable as a voice, and should it merit similar protection? When a guitarist plays his instrument, do we register it as an extension of the body, and thus the person, in the same way as the voice? Is there a “grain of the instrument,” the way Barthes identified a grain of the voice? These are not easy questions to answer; yet just like vocalists, instrumentalists can spend countless hours cultivating a distinctive approach to their own sound.

In this paper, I describe the current state of legal privilege the voice holds over instrumental tone, and advocate for increased protection for selected distinctive instrumental timbres. First, I investigate the claim of Carlos Santana, who in 1990 filed a complaint against the Miller Brewing Company for a television commercial that featured a sound-alike version of his signature song, “Black Magic Woman.” Santana’s lawyers claimed that the commercial impersonated the most distinctive aspect of his playing, and thus misappropriated his sonic identity. Santana’s claim provides the model for identifying the kind of instrumental timbre that would qualify for protection. Second, I share the preliminary results of a listener survey which support the claim that certain instrumental sounds are both distinctive and widely known. Third, I propose criteria for the development of an instrumental sound that might be successfully protected according to the current right of publicity and privacy.

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