Toni Basil Loses Appeal Over Unauthorized Use of "Mickey"

Toni Basil - Getty - H 2017
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Toni Basil's claims arising from the use of her 80s hit "Mickey" in a South Park episode and in connection with a line of Disney clothing at Forever 21 have been rejected by a California appeals court.

The singer in 2017 sued New Razor & Tie Enterprises for intentional interference with a prospective economic advantage, elder abuse and unfair business practices. She alleges the company fraudulently claimed it could license "Mickey," misrepresented that she was its client and violated her publicity rights and damaged her brand by licensing the work without permission.

L.A. County Superior Court Judge Terry A. Green in November 2018 granted the defendant's motion for judgment on the pleadings finding Basil's claims were preempted by the U.S. Copyright Act. The court granted the singer leave to amend her unfair competition claim, but she elected not to do so. Basil appealed the decision, and a California appellate court on Thursday affirmed Green's judgment.

The opinion — which describes the song as a one-hit wonder and "cheerleading anthem" — begins by describing the messy chain of title that underlies the dispute. Basil's record label, Radialchoice, decades ago went bankrupt and "a cluster of related companies all with the words 'Razor & Tie' in their names" purportedly bought the rights to license the song from Panama-based Odel Finance Corporation.  In 1998, Razor & Tie signed an agreement with Radialchoice's successor in interest, Twist & Shout, regarding the "Mickey" rights. The singer argues that under her contracts with Radialchoice the rights to "Mickey" reverted back to her upon its involuntary liquidation.

The appeals court found that all of this stems from the argument that "Mickey," which is a copyrighted work, was licensed and published without her consent.  While Basil's argument that her likeness was misappropriated could be outside the scope of the Copyright Act, it falls within it when a plaintiff hasn't alleged any use of her persona independent from the distribution of the copyrighted work. Here, the court found "Basil alleges "her 'brand and identity' — that is, her persona and any implied endorsements — '[are]' intertwined with her iconic song Mickey.'" Basil's allegations surrounding New Razor &  Tie falsely claiming to be her agent and collecting money from licensing the work are also preempted.

"Defendants’ acts in 'falsely claiming' to be her agent do not take their underlying conduct in unlawfully licensing Mickey outside the scope of preemption because such acts are part and parcel of that licensing: Because defendants are not Basil herself, they would necessarily have to hold themselves out as her agent," states the opinion. "Defendants’ acts in collecting money — no matter how it is subsequently used or what they do to conceal it — do not alter the fundamental nature of Basil’s claims or otherwise take defendants’ underlying conduct in unlawfully collecting a revenue stream from an unlawfully copyrighted license outside the scope of preemption."

Read the full decision here.