The voice is a unique characteristic of every human being, and it is an ‘instrument’ that receives much prominence, especially, where it forms the central part to one’s job; particularly, in the instances of a TV/Radio presenter or a singer, and in Maria Callas’ case, the opera singer.
Musically, a singer’s voice is the most exceptional instrument, and at the hands of a conductor it becomes the soul to 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 the voice as a personality right. Inevitably most jurisdictions now, have rulings and statutory provisions concerning the protection of a person’s voice either directly or indirectly.
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 the 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’ is prohibited.
The Voice & Art of Maria Callas
The American-born, Greek soprano Maria Callas (Μαρία Κάλλας - in Greek) is considered among the most commended opera singers of all time, as well as 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 lay people. Her recordings are the testimony of her unparalleled vocal ability of becoming the dying Violetta, Tosca, Norma, Carmen, Medea and the countless other heroines she literally brought to life even off stage, outside the theatre, as the penetrating aura and the colours of her voice are showcasing her astounding ‘range of [expressing] human emotions, from unrelenting rage to passion[,] and infinite tenderness’.
In the words of Kurt Pahlen, a well-known Austrian composer and conductor, ‘her singing is like an open wound, that bleeds its life forces passionately. . .as if she were the memory of the pain of the world…’. This quote is the purest representation of her sublime charisma of making the public to step into the shoes – usually, the tragic lives - of the heroines she famously incarnated, regardless of whether one was at the theatre experiencing her on stage, or whether they were, or are today, at home simply listening to her recordings.
Regardless of the controversies that still surround the beauty of her voice (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 said 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’, thus requesting, the ‘handing over of the recordings’, 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, and he then raised a counter-claim for compensation for damages he incurred because of the lawsuit.
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’ 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. Clearly, the Court’s rationale was that ‘any use of the recordings’ other than that the singer consented for was ‘abusive’.
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’, 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’ Maria Callas’ impact in the opera industry, while the Justices found that the act of publishing the recordings was ‘void’ 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’ to the heirs of the deceased opera star, reportedly, the sum of 1 French franc.
A comparative look into the different approaches taken in various jurisdictions
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 is one for the unauthorised commercial exploitation of one’s personality rights, or one’s copyright. Italy, in this regard, has been a pioneer in protecting the voice of a person, as it recognises specifically 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, 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, however, 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.’ 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 had 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 though, 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 had been unlikely that the court would rule in her favour.
Similar facts arose in the later, 1992 Waits v. Frito Lay Inc case, 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 a harm towards his reputation, as he was publicly against any form of participation in advertising.
The realisation is that the voice of an artist must be protected beyond the minimal level of protection afforded by Copyright laws, which protect 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).
As it has been shown a famous person’s voice has economic value, and it necessitates protection as it might not only be the instrument of their job, but also a feature of their distinctive identity and personality. This means that in those systems where minimal protection is afforded and the right to protect one’s voice does not pass to the legal heirs of a deceased, then any act that is derogatory to the memory of any person, might not only be allowed to continue, but might even reward the infringer through unjustified enrichment. In the case of Maria Callas, the decision of the French court is of paramount importance, because it establishes the protection of one's voice, even post-mortem through their legal heirs.
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  Ibid 254  Ibid 265  Ibid 255  Ibid 255  Ibid 255  Ibid 255  Ibid 255  Ibid 256  Ibid 256  Ibid 256  Ibid 262
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