Do Artists Need Permission To Use Voicenotes or Viral Videos in Their Music? A Legal Experts Weighs In

Voice Notes & Voicemails

Example: In 2012, rapper Drake was sued by his ex-girlfriend Ericka Lee for using a voicemail message she left to the artist in his popular single “Marvin’s Room.” The lawsuit argued that her voicemail “is highly significant to the overall work.” 

Do you need permission?
Absolutely. You need permission. A voice note could be something that’s copyrightable in most cases. It’s not like if you are just calling somebody and leaving a voice message and it’s very basic, such as this is who it is, this is why I’m calling. That’s just their voice on a recorder. So that itself is not copyrightable, because it’s not an original expression of an idea. When you need permission would fall under privacy laws in a number of jurisdictions. For instance, New York has a pretty, strong privacy law, and it’s been updated several times. That privacy law says to use a living person’s name, voice, or anything, you need permission from that individual. 

When someone presses send on a voice note or anything audio with their voice, the recipient doesn’t therefore now own the audio?
There’s no issue in the sense where you’re just sending somebody a voicemail and you hold onto it. I don’t know why you would want to do that, but you could have it and play it privately for friends. But the issue is using a recording for promotional game. That’s an area where it crosses over into you needing to get permission, because you’re exploiting their name. 

There are several instances where this doesn’t move past someone just calling it out on social media. Is there grounds for a lawsuit though?
There is a chance that it could be a copyright lawsuit, but I would say if it’s just a benign voicemail, saying, “Hey, this is who this is, and this is why I’m calling,” then that is not a copyrightable expression because there’s no originality behind it. Copyright only protects original active expression. For a normal voicemail, this person would have to sue under the right of privacy in that jurisdiction. And basically what [she] would be alleging is that Drake took her pain and other identifying characteristics and used it for commercial [gain]. 

Why don’t we hear about many people going through lawsuits like this?
There aren’t a lot of cases that have gone through the whole legal process and have reached a decision, probably because these things get filed and settled pretty quickly. This happens very often. For an artist like Drake, it’s probably worth it because imagine this person reached out to Drake before the lawsuit and asked for some sort of license to use the voicemail. If they did and Drake is just dragging feet or didn’t make an offer of any kind, then the next step for that individual to file a lawsuit, take it through the process at least initially, and hope that Drake would not want to take it through the entire trial and settle for like a larger amount or any amount at all.