IF the law supports it I’d divide the # of tracks then decide how important the voicemail was to that track and figure out a %.
I’d award that % of profits from all CD sales.
If the voicemail was more like a skit “intro” for the song but not all that intertwined I think it should be less and if it’s the set up for the lyrical content and/or subject of the song I’d slide more towards full value of that one track.
I believe it introduces the whole CD. Also, pretending for the moment that my friend’s name is Phil, the first song on the album is Phil’s Blues. So it’s a sort of introduction to the first song especially.
As a musician and composer who’s done a lot of publishing negotiations (including some pretty ugly ones), I would ask for three things:
compensation for the reproduction of the piece. I would ask for the statutory rate, and treat just as it were a piece of music to which I held the exclusive publishing and mechanical rights. I would also register the piece with BMI or ASCAP, just to start collecting money IF it started getting airplay.
Compensatory damages for lost wages, citing harm to the plaintiff’s professional reputation and future employability. Depending on how widespread the dissemination of the piece was, I would adjust the damages I was seeking - if it’s only getting out on college radio at 3 AM, maybe a couple of hundred bucks. If we’re talking the height of morning drive in a major markets, I’d seek anywhere from thousands to tens of thousands of dollars, depending on the following factors: 1) the market share of the program on which it was aired 2) the level of impact on the ability of the plaintiff to find work, 3) the nature of the relationship between the plaintiff and defendant now and at the time of the release, and 4) the size/relative name of the defendant - i.e. a small market local musician, I wouldn’t ask for much, but were it an artist on a major label, or with a professional producer, I’d shoot for the moon. A label or producer should at least exhibit some degree of restraint to limit potential liability in these types of situations. Plus, and this is me speaking personally, screw the big labels.
Punitive damages, at least in an amount equal to the sum the amounts in reasons one and two.
Hope this helps!
Without his consent, and in the context of a commercial product, I would definitely be pissed and expect some kind of monetary compensation. There is no doubt in my mind that that the us of his voice and the content of the message is adding value to the product.
The other issue at stake, for me, is one of privacy and the possibility of damage to his reputation and the such. This one seems a litte more tricky to prove, for me.
As for damages? I don’t know. I’m sure there must be similar cases out there, no? What were the results of those lawsuits? As for the money, I suppose a lot of it depends on how wilful the infringement was. Are these established industry professionals who really should know better? Or just an indie label with no clue what they’re doing? This would make a difference in my punitive award.
As for amount, I really don’t know. If I had to low-ball an estimate, maybe $10,000?