Bette Midler v. Ford Motor Company, a Delaware Corporation, and Young & Rubicam Inc., a New York Corporation

Citations: 849 F.2d 460; 7 U.S.P.Q. 2d (BNA) 1398; 15 Media L. Rep. (BNA) 1620; 1988 U.S. App. LEXIS 8424; 1988 WL 62574Docket: 87-6168

Court: Court of Appeals for the Ninth Circuit; June 22, 1988; Federal Appellate Court

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The case involves Bette Midler's appeal against Ford Motor Company and Young & Rubicam Inc. regarding the unauthorized commercial use of her voice in their 1985 "Yuppie Campaign." The campaign featured television commercials using popular songs from the 1970s, and when unable to secure original artists, the agency employed sound-alikes to perform the songs. Midler, a renowned singer and actress with a successful career, was not asked to participate after her manager declined the offer for a commercial. Instead, Young & Rubicam hired Ula Hedwig, a former backup singer for Midler, to imitate Midler's voice for the commercial. 

Hedwig closely imitated Midler's rendition of "Do You Want To Dance," leading many viewers to believe it was Midler singing in the commercial. Although Midler's name and likeness were not used, the court noted that Young & Rubicam had licensed the song's copyright. The district court characterized the defendants' actions as akin to theft but ultimately ruled that there was no legal protection against the imitation of Midler's voice, granting summary judgment for the defendants. Midler's appeal challenges this ruling, focusing on the protectibility of her voice from commercial exploitation without consent.

The First Amendment protects media reproduction of likenesses and sounds, emphasizing freedom of speech and press. The media's use of an individual's identity is assessed based on its purpose; if it is informative or cultural, it is immune from liability, whereas exploitative use is not. Federal copyright law further complicates these issues, as mere imitation of a performance does not constitute infringement, as established in the context of Nancy Sinatra's lawsuit against Goodyear. Sinatra accused Goodyear of unfair competition due to an advertisement imitating her style, but the court affirmed summary judgment for the defendants, noting they had licensed the song and that damages would conflict with copyright law.

In comparison, Bette Midler's situation differs as she does not seek damages for the use of her song. Copyright law protects original works, but a voice itself is not copyrightable, making her claim more personal than copyright-related. The case of Bert Lahr, who sued for unfair competition due to the imitation of his voice in a commercial, was noted as more analogous, but the court found no unfair competition in Midler's case since the defendants' commercials did not saturate her audience or market.

Additionally, California Civil Code section 3344, which allows damages for unauthorized use of a person's name, voice, or likeness, does not apply to Midler, as her voice was not used. The statute clarifies that it does not preclude common law actions, implying such rights exist outside of this specific provision.

The statute recognizes the use of a deceased person's name, voice, signature, photograph, or likeness as property rights, which extends to common law rights in California. Appropriation of these rights constitutes a tort, illustrated by the case of Motschenbacher v. R.J. Reynolds Tobacco Co., where the use of a modified photograph of a racing car implied the endorsement of the driver, Lothar Motschenbacher, despite his unidentifiable presence. The court emphasized that California law recognizes injury from appropriating one's identity attributes, regardless of direct identification.

In contrast to Motschenbacher, the case involving Midler illustrates a situation where her voice, an essential aspect of her identity and commercial value, was imitated to promote a product. The defendants' deliberate use of a sound-alike singer to replicate Midler's voice demonstrated an appropriation of her identity, as they sought to leverage the market value of her distinctive voice. The court noted that a voice is a unique and personal identifier, akin to a face, and imitating it for commercial gain constitutes identity theft.

The ruling does not imply that all voice imitations are actionable but establishes that imitating a well-known professional singer’s voice for profit constitutes a tort in California. Midler provided sufficient evidence to challenge the defendants' motion for summary judgment, leading to the case being reversed and remanded for trial.