somewhat limited instance where mr roberts chose to explicitly advertise his force forthcoming album and free song distributed over the internet it's undisputed that mr roberts used mr jackson's name and  thirty seconds of his voice without permission from anyone for that promotion and repeatedly in that promotional song mr roberts tells the listener to buy his album black market which goes on sale december  generally advertisers pay significant amounts of money to mr jackson to use his persona in their ads however in this case mr roberts did not pay a dime to use mr jackson's identity to promote his commercial album in fact even though he readily acknowledges that there is a standard licensing process through which he could have gone to seek permission he didn't do that he didn't seek permission from anyone such conduct as the district court correctly indicated is a violation of mr jackson's right to control the commercial use of his identity and do you agree that if there remakes had not included any in from the upcoming album it was just like correct so it's just that the focus on the upcoming album and the references you say are promoting mr jackson's i mean mr roberts upcoming album that turned this into a case correct we're not challenging generally the ability of artists to take a song and read and sample from it and make a new creative work we're just saying in this unique instance where mr roberts decided to combine a remake song with  your connection with the club that he's not the party who can bring this action you want to tell us why you don't think that argument should trouble us sure and i'd like to address that specifically because it's it's of fact that i believe the district court got wrong this report specifically focused on section eight point zero one of the recording contract and specifically on a provision that was no longer operable at the time the district court in finding that mr jackson had or otherwise gotten rid of this right focus on eight dollars b which is the counterparts to that which is that mr jackson agree that during the term of the agreement he would not use his name and likeness to advertise photograph other foreigner graphic records that he wouldn't do that only the record label could do that there is no such restriction in two thousand and fifteen in the time period in question only other provision that's relevant to this analysis is section eight point zero three and that provision is a restriction on the rights of the record label as a copyright holder so these are these are additional restrict these are restrictions on the record label itself had agreed to impose among other restrictions mr jackson's label agreed that would not license master recordings including the song and issue in the club for use as a sample without mr jackson's the right to control the use of his name of the district court made two errors both that misread the contract because he had surrendered or rather if he had surrendered it prior to the expiration of the contract somehow drew the inference that that its conclusion about the surrender by jackson of the name somehow justified the imposition of field preemption on jackson with respect to the use of his name and these are apples and oranges the one that has nothing to do with the other and that's absolutely correct your honor our position here is that essentially we agree the the record label owns the copyright but at issue here is mr jackson's right of publicity certainly hasn't assigned that to anyone else that still his and the the use of the the question of whether one is entitle to use the name in publicising anything is not something is not is not is not an the club featuring fifty cent promising a featured performance by my client and within the st ten seconds of the song here's repeatedly only on the black market december th the album is out only on the black market december  with respect to the use of the sampling and the use of the copying by the defendant of the plaintiff's work that seeks to prevent a performance so would you  why that should not be why should that not be preempted by section three all one's field preemption absolutely there's a number of circuit courts that have addressed the specific question each  each such court has considered has held that in an instance where the challenge use is an advert and then as opposed to just creating in another entertainment work the subject of such a claim is not the copyrighted work itself say the song it's actually mr jackson's persona and the use of his persona as an bodied in that song is what he's challenging so you should agree with that because otherwise there's no limiting principle whatsoever left in terms of a right of publicity i give you an example to illustrate if i take your photograph i hold i could be the copyright holder to that photograph and can use it in a  manner that i see fit the same is true for a video or a sound recording but what i cannot do as the holder of that is put an advertisement for coca cola and print that in a magazine that would be a violation of your right of publicity this court is recognizing there is a separate property right in the right of in one's ability to control the commercial use of their identity and even if even if they mix tape can be classed as an advertisement it doesn't necessarily follow that the use of the plaintive voice in that at some point in that somehow implies that the that the plaintiff is is indorsing on what the what the mix is promoting that's absolutely correct but the claim here is not for false endorsement it's for commercial use that identity and there's no false indorsement component as an element and that's a distinction this court made in the rogers case when it was talking about the right of publicity more significantly why and why there shouldn't be a false endorsement problem there is that any advertiser at that point could take this song and separately say buy coca cola say a couple other things and then play mr jackson's song on a radio ad that is a advertisement invoking mr jackson's right of publicity and that is that's how celebrities presently make money and the endorsement contacts they get to control when an advertisement uses their identity or not so that's that regardless of it's an endorsement or not would this be the same case if in if instead of putting the lyrics saying the album coming out in a few weeks on the self it just appeared in a caption you know if you go on the internet you can find the listen to it and then there is also my album's coming out next month i don't believe it would be as certainly not as strong of a case i will say those facts are also that still advertising i mean as you're defining it it depending on the specific facts it could be here for example the out of the album cover actually says black market december th that image is imbedded in the file so when you download it if you have a certain type of media player on your computer you actually see an image that's an advertisement for the album and then you hear the song i don't think this court needs to address that that case to hold that here this is explicit lyrics the only only on the black not is not counting and i was just wondering what those were and all sure to except your argument how we would distinguish human words so there is a there is a critical point here and it's from the restatement from that section which is in incident advertising it would be if actually in this case if someone had the coppery to in the club and wanted to sell in the club they could they could sample from that song that's related to the copyright that wouldn't be a violation of mr jackson's right of publicity here had mr roberts on black market talked had a song about mr jackson and talked extensively about him and even sampled his voice they could use they could make an advertisement using that song that would be selling that work here what the what the promotional song and issue is it is that it's a disguised it's an it's an advertisement for a collateral product the product is not this promotional song the product is something else that's completely unrelated to black market and that's the distinction between generally selling entertainment work versus using and entertainment work to sell a collateral supposing that that the that the copyright holder the copyright holder doing doing nothing improper doing only things within its rights as the copyright holder had licensed for money robards to use a sampling in his mixtape and jackson susan says you're using my voice which people recognize as me people recognize my voice in your you're using that you're using my identity for your personal benefit a suit against roberts not against the copyright holder is that mixtape the same exact same mixtape in the record meaning it has the commercial lyrics as well as just generally entertained in that case yes he would have a right of publicity claim and last the the record label had been able to convey a certain sort of publicity license the contract allows the record is if someone wants to sample a song mr jackson's consent is sada's part of that licensing process so that's see a five for one to five for two you have an e mail of specifically your example it was a different artist asked permission to you to use a portion of into club what happened was the record label forwarded that request to mr jackson to get his can say that he said yes the record label conveyed the license and there was no problem because they had both consent from the publicity right holder and the copyright holder all our position our position in this case is mr robert should have gone through that process and by not doing that he violated mr jackson's right of  plaintiff curtis jackson is also known as fifty cent i want to merely address with judge level your hypothetical and which you just said would mr jackson have any kind of independent right to take issue with the regular record label or the copyright holder had mr jackson had mr roberts and that gone through the licensing process to do a remix of the end of club recording and his st answer was actually well he would have a breach of contract claim and that's exactly right the th circuit's state laws versus sony music case that judge egan to whom i understand passed away a few months ago cited to extensively and his summary judgment order he did reiterate as in laws that your true issue is with the record label company not the defendant in the laws versus sony music case you saw him repeatedly and i circuit they would say in this law's issue with jennifer lopez and her sampling with of all i have which was a number one song back in early two thousand it netted forty million dollars and so miss last sued sony music for authorize use of one of her song recordings and in that circuit opinion the judges said that your issue is with the regulator will not sony music and so the answer to your question is mr jackson's issue is with the record label not mr roberts the record label here commercial speech was even necessary because as you just alluded to as well section three hundred and one a does not make some unique carve out with respect to only commercial specific uses section three  one of the copyright act specifically excludes on authorized uses of reproduced distributed copied works that are already registered as copyrights that is a copyright infringement claim a right of publicity play and here judge went through the both the subject matter requirement as well as the general scope requirement and determining whether or not the preemption defense applied in this case and with respect to the subject matter requirement there's no dispute in the record evidence that the use of mr robert's remakes was an exact duplicate it was a copy it was the end the club if you were to listen to the sound recording of the original in the club which is a registered copyright that is still to this day owned by shady aftermath interscope records that she and aftermath are two separate but related record label imprint  product well yes i would submit to you that the nice circuits lost case on without question there was a commercially released album by jennifer lopez that netted forty million dollars yes every series says that's a different case because you were purposes so i think it would be extremely difficult basically based on dylan's position in your question for judges to now have to listen to every single song as to whether or not the hip hop artist or entertainer has made reference to a specific product or service in a mixtape bear in mind the parties don't disagree it's amply in the record by the party's own deposition transcript they agree there is a difference between a mixtape in a commercially released album it's only because of the way of the internet through social media that we even have this issue now we don't deny mr roberts through his twitter account did post his twenty six songs and what he called his runs all remakes is mixtape album so there were twenty six songs that get downloaded it is not true based on my friend fred here in terms of what he said that you're going to automatically see some head featuring fifty cent that mr roberts is somehow trying to promote in connection with his next album hip hop artists release mix tapes between the nd to refer to the upcoming commercial out its comment that products or services will be mentioned judge livingston and we did have our expert testify as well as  is common in the hip hop industry and mix tapes and underground tapes fifty cent or mr jackson made it to himself in his deposition testimony it's not uncommon that you're going to make reference to a product or service dornment deal with with two of those entities but it is definitely understood and it's not uncommon that in a remakes or mixtape you make may make reference not just to a specific product or service but you may make reference to someone else's name with or without their permission this this before this circuit in the southern district of new york and lindsay law suit prayers in the record label for them making a mere reference to her name in a song and that court found that it was an artistic expression in the song itself and that because it was in the entertainment  so why don't you tell us why you don't think so that not only do i not think so but the factual record does not speak to such because if you actually read all of the lyrics in their entirety we're talking about an album this was not a single that was released in which he was trying to self correct what you're saying right and what i'm suggesting is that the claim to burgess meant is number one it's it's it's something that he did throughout nine other songs there was no particular intent or focus on the plaintiff per se and in fact i believe in the club remakes is like number nine of twenty six and you also see miss judge rugby is it through his own testimony if he was attempting to actually make a commercial exploitation of the connection of the plaintiff himself in promoting his next album he would have released it as a single he would have actually probably done photographs or he would have spent much more time it in making intentional efforts to actually advertising connection with the use of his next coming  not even mention actually to the last one thousand seconds of the song and two was the fact that the feature in the track title said in the club featuring fifty cent so that that particular name component i w sports had continued to air and there the court declined to permit her right of publicity to proceed in that it was preempted by the copyright act because they found that the performance of her on the copyright recording was part and parcel it was a part of the recording itself since she didn't have any independent or separate right in that context coming out next month that would be that would be fine or would that be a right of publicity claim if he's making specific reference to the name of the appellant in connection with what he said in his product trying to promote it then i respectfully could for see and understand that perspective you got it so your argument is the name is is what it's it's not it's york and other states here in the nd circuit and he and the posing counsel himself and the reply brief they even acknowledge that you can have situations where the right of publicity doesn't apply including for entertainment which is what we have here and that is precisely how the beyond say nose mike araya case was was resolved minimus use exception and we definitely brief that extensively and both are summary judgment motion as well as other briefings in the record and don't forget yes you're there's no dispute here that the contracted terminate in two thousand and fourteen that's not correct what he is referring to is the terms of the contract with respect to the artist his requirement that he has to produce a certain number of albums songs or  performances and so i don't know if that was maybe an inadvertent interpretation i suspect there's probably a survival provision as well that would speak to that but there is no question whether it was in two thousand and fifteen or now today in two thousand and twenty if someone wants to go through the more traditional method of seeking to obtain permission to use original or master recording of a soul in this particular instance with respect to this song there's no question about it you would go to the rhett record label sheet aftermath interscope and we briefed extensively the number of citations to the record in which the himself from his own deposition from written discovery and responses to requests for admissions that he has no independent or separate right and to be able to give approval for the enda club recording their emails on the record as well regarding that whether or not he believes he has a say we don't do now we don't deny that he may have some involvement from time to time but i asked point blank in his deposition testimony do you see any contractual right that gives you the ability to approve the ndaa club uses he said no for licenses i also sa name for publicity changed from being exclusive to non exclusive in two thousand at the end of two thousand and fourteen i don't agree with that interpretation and i don't believe that   we don't interpret the contract to be as if somehow his his name was separate and apart from the vocal recording itself says that some independent different provisions record the  contract speaks to in section seven and section eight it does speak to the use of name image and likeness of mr mr jackson and to your your your question i would i would also add  that mr jackson himself never identified or pointed to any specific contractual provision that gave him the ability or right to approve use rd party uses of the recordings and he also  acknowledge and admitted that when someone wants to get a remakes sampling or recording of an original master recording of his there they're not separately going to him to ask for an independent right of publicity and this gets into our my last point and i'll sit down for public policy reasons and the last decision speaks to this the th circuit's last decision speaks to this for public policy reasons if we were to accept plans position it would definitely create a floodgate of litigation and absolutely turned the clearance process regarding any copyright holders to t v film music or entertainment or the like and i know you've heard that argument a lot or that bunch phrase a lot but just just consistent with the record evidence including our expert bob cone if someone wants the rights to be able to use  copyrighted sound recording they are going to the record label the copyright holder and then for the use of the musical composition they will separately go to the publisher of that song and in this case those parties have been identified and it's fairly consistent in the entertainment industry that if you want to go about doing this in the clearance process or the clearance way you're not going to still separately then go back to the artist and there could be multiple artists on the song and say oh by the way even i think i already have your approval through your record label the cabaret owner let me also still try to track down each and every artist that was on a song and get their permission or i just want to briefly address a couple of factual points that came up at the end of counsel's argument the st is we're not asking for a separate licensing process what we're complaining about is that mr roberts didn't go through the existing licensing process and if you look at the record evidence the existing licensing process incorporates the right of publicity to begin with i also can reverse as mister jackson had any ability use this use of that song but what mr jackson has a property interest in is his right of publicity which is embodied in the fact that his voice is in that song and he can exercise that right without the record company couldn't act independently right i believe that's generally correct your honor and that's true for any type of copyrighted work if i take your photograph i can prevent you from using that photograph but what i cannot do is take that photograph and make it an advertisement for coca cola or authorize someone else to do that without you also consenting to that commercial use that's the right of publicity if that is not the case there is no right of publicity left anymore because anyone can against against your will capture your image in some way either your voice sound recording of you or a video and use that in an advertisement and there are the copyright holder there's two rights that are at play there  i'm having trouble understanding what publicity right mr jackson has in this recording that he could exercise independently of the record company he could not stay he he  independently exercise in the voice recordings yes or no and that's that's what professor mccarthy talks about in his treatise and it's blockquote on page sixteen of a reply brief that if the fact that the copyright holder has those rights doesn't extinguish the right of publicity or make it not mr jackson's it's that permission is needed from both parties ok it was i think there was a square disagreement between you and your adversary with respect to whether jackson in two thousand and fifteen all md had had any any interest in the in the right to license to use of his name in connection with subject so such publicity shores so to address you have taken you took the position if i understood correctly that at the at the end of two thousand and fourteen the right granted by jackson to his publisher that the license went from being xclusive to non exclusive so that jackson after two thousand and fourteen does possess a right with respect to the use of his name  ever heard that there might be a dispute about lawyers to the actual provision that substantiates the deposition testimony that it terminated in twenty it just it was no longer renewed so there's just the only evidence in the record is that the contract no it is contract actually it was renewed several times there is evidence of that in that deposition testimony and then it just wasn't renewed again and in fact mr he testifies now as a  contract with another agency so that's that's the term the other thing i would say to that though is that the we're talking about slightly different rights there's some nuance here the nonexclusive license or even if you want to interpret it as an exclusive license that mr jackson gives the record label is for marketing photographic records here under meaning records that mr jackson produced pursuant to this agreement phonograph records under the agreement what mr roberts advertised as something separate that's his own commercial album mr jackson never granted his record label a right to use his right of then sue the defendant saying you used my voice my voice i was one of the choir my voices in there were used my my my the recognizable my my recognizable plane of my violin  preempted by the copyright laws so you know what the answer your question is most likely not can i get kicked connecticut as a little bit sparse in terms of its case law defining the scope of its complicity right claims generally the common law cases about voices the reasons voices are protected is because they're an addition of someone's identity and so for example the bat medlar case from the th circuit that number has a distinctive voice that is associated with her identity this in choral pieces there are several there are so low parts there are often solo parts in the in the in the in the above and above us and somebody somebody can make a claim with maybe with some validity that my recognizable but that it's someone who's known you can recognize their voice then yes that does implicate their identity and if that piece is used in a commercial advertisement the claim is not preemptive things that person has to be it's not well developed but generally the cases that are protected voices have been for celebrities although the idea behind the right could extend a non celebrity as well there's sort of a dual purpose it's both to protect against commercial exploitation if you don't want your name to be commercially used and then also to allow you to exploit the commercial value of your of your name which is more an issue here in the jackson if you look at all of the mix tapes in the record there's lyrics for them no other mixtape contains a commercial message like this it's clear that he was singled out even within the black but the  is at issue nor is it the case that you know an incidental mention of a you know and indeed issue or something in a mixtape makes it into a commercial advertisement can rap about drinking a coca cola that's on an ad for coke by the point where you say b my album is out on december th that is a blatantly commercial message and that is what distinguishes the use of a sound recording or a photograph or a video for copyright preemption from other sorts of the subject of the claim is is the persona itself and if if you review professor nemmers analysis on this i think it's it's pretty a lot of it divides the case law literally on whether it's just a song that was sold for its own thing or in the case of john facenda out of the rd circuit is his voice as using an advertisement and professor number says that distinction perfectly explains how courts in this domain actually rule because they focus not on whether it was a sound recording or a photograph but they focus on utilizations and when they're used and you know to advertise a collateral product that is when you cross the line and the subject of the claim is your identity and the