The voice is a unique characteristic of every human being: it is an ‘instrument’ that receives much prominence, especially, where it forms the central part of one’s job; particularly, in the instances of TV/Radio presenters or singers, etc., and in Maria Callas’ case, the opera singer.
Musically, a singer’s voice is described as the most exceptional instrument, and at the hands of a conductor, it becomes the soul of the melodies played by the orchestra. From a legal perspective, the courts in many jurisdictions have traditionally perceived a person’s voice as the means through which one expresses their individuality, thus protecting it as a personality right. Inevitably, now, most jurisdictions have related rulings and statutory provisions.
In the case of Maria Callas, a post-mortem dispute arose between her legal heirs and the French radio station which broadcasted and the person who issued unauthorised recordings of arias with the late opera singer’s voice. The case is suggestive of the notion that a singer’s and generally an individual’s voice is their ‘sound image’, which must be protected. The Court’s ruling in this instance reflects that ‘any sort of recording or reproduction [of a person’s voice] thereof without [the holder’s or their legal heirs] due consent’[1] is prohibited.
About Maria Callas
The American-born, Greek soprano Maria Callas (Μαρία Κάλλας - in Greek) is considered among the most commended opera singers of all time, and one of the most controversial voices of the twentieth century. Maria Callas was described as a vocal phenomenon of bel canto (Italian for ‘beautiful singing’) and was praised as a showstopping voice and figure that had dominated the world’s top Opera Houses from the late 1940s till the mid-1960s.
The dramatic charisma of her voice, along with her bewitching acting presence, facilitated her superb ability to captivate not only the audience in the theatres where she performed but also the public in general, as the reach of her voice reintroduced the world opera to the lives of laypeople. Her recordings are a testimony of her unparalleled vocal ability in becoming the dying Violetta, Tosca, Norma, Carmen, Medea and the countless other heroines she brought to life even off stage, outside the theatre.
Even though controversies still surround the beauty of her voice as some have openly disliked it, her late vocal decline, and the personal tragedies she had incurred, she is nevertheless remembered today as a ‘primadonna assoluta’ and she has officially been bestowed the title of ‘La Divina’ (The Divine One).
The facts of the dispute
In 1976, a year before her sudden death on the 16th of September 1977, Maria Callas recorded privately at the Champs-Elysees Theatre in Paris trial recordings of the aria ‘Habanera’ from the famous opera ‘Carmen’ and Beethoven’s aria 'Ah Perfido’. Dissatisfied with the sound of her allegedly declining voice, she refused to continue recording and eventually ended her singing career at that stage.
In December 1980, a French radio channel streamed the aforementioned recordings, something that led her legal heirs (her estranged mother, Evangelia (Ευαγγελία) and sister, Jackie (Υακίνθη)) to raise a lawsuit against the radio channel which broadcasted, and the theatre manager who issued the recordings. Their claim was that the recordings and the subsequent streaming were ‘an illegitimate intrusion in the artistic life of the singer and a serious offence to her memory’[2], thus requesting the ‘handing over of the recordings’[3], reimbursement (300.000 francs) and the publication of the decision.
In their defence, the radio channel supported that there was no ‘dishonour or damage’ towards the reputation of the deceased opera star, as the sole purpose was to show their appreciation and admiration towards her legacy. The Champs-Elysees Theatre manager supported that Maria Callas herself authorised the recordings, meaning that her legal heirs had no legal standing in raising the dispute in the first place. He then raised a counter-claim for compensation for damages he incurred because of the lawsuit.
The verdict
The Tribunal de Grande Instance de Paris, which heard the case, had a different opinion. It ruled in favour of Maria Callas’ legal heirs, thus recognising that the unlicensed use and publishing of one’s voice is an offence. The legal basis for the outcome was the existence of an ‘infringement on the singer’s artistic property’ and that the acts of the radio channel and theatre manager were ‘an attack against her personality’[4] and privacy. A critical point was that the opera star was dissatisfied with those recordings and wished them to remain private, a fact that was corroborated by Maria Callas ending her singing career immediately after listening to the recordings. The Court’s rationale was that ‘any use of the recordings’ other than that the singer consented for was ‘abusive’[5].
The Court emphasised that one’s voice, particularly an artist’s – a singer’s – ‘is an attribute of the[ir] personality, a sort of sonorous image’[6], and any interference with it, without prior approval by the ‘owner’ is deemed illegal. The Court, however, recognised that the radio channel did not intend to harm the deceased opera singer, as the radio show ‘praised’[7] Maria Callas’ impact in the opera industry, while the Justices found that the act of publishing the recordings was ‘void’[8] of any intention to harm Maria Callas’ legacy. Consequently, although the Court ordered the handing over of the recordings, they only imposed the payment of a ‘symbolic compensation’[9] to the heirs of the deceased opera star, reportedly, the sum of 1 French franc.
This case is indicative of the importance to respect one's right to protect their unique characteristics such as their voice, and even though the French Court's ruling was mostly symbolic, it surely paved the way for the future. Now that we live in a digital era, this ruling attains once again prominence as the protection of our personal data has come once again at the forefront. But there is still great divergence in the way different legal systems protect one's voice.
International insight
At this stage, it is important to note that not all jurisdictions afford the same level of protection towards an individual’s voice, whilst some states do not afford any protection at all unless the claim concerns the unauthorised commercial exploitation of one’s personality rights or one’s copyright. Italy has been a pioneer in protecting the voice of a person, as it recognises the importance of an individual’s right to approve or reject any form of recording and/or reproduction or publication of their voice. Similar provisions exist in Hungary, Argentina and Peru where the ‘express consent of the holder’ is required, and in the case of deceased persons, the consent of their legal heirs (Peru). There are, though, a few well-defined exceptions. For instance, where the person in question is well-known, and there is public interest, provided that the use is not derogatory to their reputation.
On the other hand, the English common law did not protect, until recently, the ‘personality rights’ of one’s image and voice, but it does now, particularly if they are exploited for commercial purposes without authorisation. It is important to note, that the English and Irish legal systems do not protect the post-mortem memory of a person as they claim that ‘one cannot slander the dead.’[10] That is in contrast to the rest of the European states which afford such protections. Consequently, had the Maria Callas case been brought before the English courts, the legal heirs of the acclaimed soprano would have been void of any claim.
In the US, the 1988 case of Midler v. Ford Motor Co expanded the right of publicity to cover the protection of one’s voice and identity. The circumstances of the case are that the Ford Motor Company, following Bette Midler’s rejection to sing for their advertisements, hired a singer that sounded like her, and asked her to sing the song they wanted to include in their ads following Mrs Midler’s singing style. The Court ruled in Mrs Midler’s favour, who claimed infringement of her right to publicity, on the ground that a person’s voice is a ‘distinctive’ element of their own identity. It must be noted, that under US copyright law a sound-alike does not constitute copyright infringement. Therefore, had her claim been raised within the realm of copyright, it would most probably have been unlikely that the court would rule in her favour.
Similar facts arose in the later 1992 case Waits v. Frito Lay Inc, where the use of a person to imitate the voice of a famous singer that rejected an agency’s offer to sing for their advertisements was deemed a breach of his right of publicity. The singer, in this instance, was successful in receiving not only compensation for the unlicensed commercial use of his voice, but also damages for harm towards his reputation, as he was publicly against any form of participation in advertising.
Consequently, the voice must be protected beyond the minimal level of protection afforded by copyright laws. Simply put, copyright protects the medium through which one’s voice is recorded, but not the voice itself. Usually, it is the producer and not the singer that is entitled to raise any claim, as the custom is for the singer to transfer their copyright to the producer unless, of course, they are joint holders of the right or the vocalist retains the right exclusively. Therefore, the need for enhanced protection arises because a person’s voice can be ‘abused’ in the sense that it may profit an abuser - a third, unauthorised party - who will gain against the consent of any living or a deceased person (their legal heirs).
Concluding remarks
Any person’s voice must be protected not only because it might be the instrument of one's job, but also because it is a feature of their distinctive identity and personality. This means that in those systems where minimal protection is afforded, hence, the right to protect one’s voice does not pass to their legal heirs, any act that is derogatory to the memory of any person will not only be allowed to continue but might even reward the infringer through unjustified enrichment.
Endnotes
[1] Julia Ammerman Yebra, 'The Voice of the Opera Singer and Its Protection: Another Look at the Maria Callas Case' in Filippo Annunziata Giorgio Fabio Colombo (Eds), Law and Opera (Springer 2018) 253,254 [2] Ibid 255 [3] Ibid 255 [4] Ibid 255 [5] Ibid 255 [6] Ibid 255 [7] Ibid 256 [8] Ibid 256 [9] Ibid 256 [10] Ibid 262
Bibliography
US Caselaw
Midler v. Ford Motor Co., 849 F. 2d. 460 (9th Cir. 1988)
Waits v. Frito Lay Inc Inc., No. 978 F.2d 1093, 9th Cir. 1992
Chapters in books
Ammerman Yebra J, 'The Voice of the Opera Singer and Its Protection: Another Look at the Maria Callas Case' in Filippo Annunziata Giorgio Fabio Colombo (Eds), Law and Opera (Springer 2018) 253
Books
Waelde C. et al, Contemporary Intellectual Property: Law and Policy (4th Edn, Oxford 2016)