This article suggests that copyright law can cover soundalike musical recordings. First, the facts and holding of Midler will be discussed as well as the court's motivation for not deciding the case on a copyright infringement basis. Second, an historical background for copyright infringement of music follows. This section involves a discussion of copyright infringement, parody, and fair use as well as a summary of existing case law regarding each topic. After an illustration of the dilemma of what copyright may protect involving the jazz-rock band Blood, Sweat & Tears, the focus shifts to what could have been done to protect Bette Midler's voice by means of copyright law. This section involves an analysis of why the Midler court declined to regard that case as involving infringement, parody, or fair use issues. Also encompassed within this section is a discussion of why copyright protection is necessary and proper for celebrity soundalike recordings. The final section extends copyright protection to Midler's voice based on the "look and feel" concept associated with computer programming as well as the principles discussed in the Altai case. The argument in this area suggests that 1) because copyright protects an underlying work, a performance, and a recording, why not the "look and feel" of these elements?; and 2) that the Altai principles of abstraction, filtration, and comparison are applicable to a Midler-type situation.
The Past, Present and Future of Copyright Protection of Soundalike Recordings, 81 J. PAT. & TRADEMARK OFF. SOC'Y 517