Citation. Midler v. Ford Motor Co., 849 F.2d 460, 7 U.S.P.Q.2D (BNA) 1398, Copy. L. Rep. (CCH) P26,313, 15 Media L. Rep. 1620 (9th Cir. Cal. June 22, 1988)
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Young & Rubicam, Ford Motor Co.’s (Ford) (Defendant) ad agency, could not get Bette Midler (Plaintiff) to re-create her 1970s hit Do You Want to Dance for its television commercial for Ford (Defendant), so it hired a former Plaintiff backup singer to impersonate her voice.
Synopsis of Rule of Law.
Under California law, intentional imitation of a celebrity’s distinctive and widely known voice for commercial purposes constitutes tortious misappropriation.
Facts.
Young & Rubicam, Ford Motor Co.’s (Ford) (Defendant) ad agency, developed a series of television commercials designed to appeal to yuppies evoking memories of college days through use of popular song hits of the 1970s. One such commercial was to feature the song
Do You Want To Dance, originally performed by Bette Midler (Plaintiff). Midler (Plaintiff) was a nationally known singer/actress/comedienne whose albums had gone platinum and gold and had been nominated for an Academy Award. Ford (Defendant) approved the concept after viewing the proposed commercial with an actual recording of Midler (Plaintiff), but Plaintiff, through her agent, refused to rerecord the song for the commercial. Young and Rubicam subsequently hired a former back-up singer for Plaintiff to act as a sound-alike. The singer was told to sound as much as possible like the Bette Midler record, which she did so well that a number of people told Midler after the commercial aired that she sounded exactly like the original. Neither Plaintiff’s name nor picture was used in the commercial. Plaintiff sued for misappropriation of her right of publicity in her voice, and although the district court held that Ford (Defendant) and Rubicam had acted like common thieves, it granted Defendant’s motion for summary judgment because it believed Plaintiff had no legal basis for her claim.
Issue.
Under California law, does intentional imitation of a celebrity’s distinctive and widely known voice for commercial purposes constitute tortious misappropriation?
Held.
(Noonan, J.) Yes. When a celebrity’s distinctive and widely known voice is intentionally imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California. California recognizes an injury from the appropriation of the attributes of one’s identity, including the voice, which is one of the most palpable ways identity is manifested. A singer manifests herself in her song; to impersonate her voice is to pirate her identity. The value of this attribute is what the market would have paid for Midler (Plaintiff) to sing the commercial in person. Plaintiff has made a showing, sufficient to defeat summary judgment, that Defendant appropriated her identity for it’s own profit in order to sell its product. Reversed and remanded for trial.
Discussion.
The court in this case rather cleverly sidesteps the issue of federal preemption of California’s tort under the Copyright Act, which provides in the Notes of the Judiciary Committee to § 114(b) that: Mere imitation of a recorded performance would not constitute a copyright infringement even where one performer sets out to simulate another’s performance as exactly as possible. However, there had been an unreported decision foreshadowing the Midler holding in Apple Corps. Limited v. Leber, 229 U.S.P.Q. 1015 (Cal. Unrep. 1986), where the Los Angeles Superior Court had held that a multimedia production of Beatles imitators who performed about thirty Beatles numbers so accurately imitated the Beatles in concert that the audience . . . suspended their disbelief and fell prey to the illusion that they were actually viewing the Beatles in performance.
