Midler v. Ford Motor Co.
849 F. 2d 460 (1988)
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Rule of Law:
Under California common law, the deliberate imitation of a widely known professional singer's distinctive voice for a commercial purpose constitutes an appropriation of identity, which is an actionable tort.
Facts:
- In 1985, Ford Motor Company and its advertising agency, Young & Rubicam, Inc., developed a television commercial campaign to appeal to 'Yuppies' using popular songs from the 1970s.
- Young & Rubicam contacted the manager for acclaimed singer Bette Midler to ask if she would sing her rendition of 'Do You Want To Dance' for a commercial.
- Midler's manager unequivocally rejected the offer, stating, 'We are not interested.'
- Undeterred, the agency hired Ula Hedwig, who had been a backup singer for Midler for ten years.
- The agency played Midler's recording of the song for Hedwig and instructed her to 'sound as much as possible like the Bette Midler record.'
- After the commercial aired, numerous people, including personal friends and an unaffiliated entertainment manager, told Midler they believed it was her singing.
Procedural Posture:
- Bette Midler sued Ford Motor Company and Young & Rubicam, Inc. in the United States District Court.
- The district court granted summary judgment in favor of the defendants, Ford and Young & Rubicam.
- Midler, as the appellant, appealed the district court's grant of summary judgment to the United States Court of Appeals for the Ninth Circuit.
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Issue:
Does the deliberate imitation of a professional singer's distinctive voice for use in a commercial constitute an actionable appropriation of her identity under California common law?
Opinions:
Majority - Noonan, Circuit Judge
Yes. When a distinctive voice of a professional singer is widely known and is deliberately imitated to sell a product, the sellers have committed a tort in California by appropriating an attribute of the singer's identity. The court reasoned that although Midler's claim does not fall under federal copyright law (as a voice is not copyrightable) or California's specific right of publicity statute (which requires use of an actual voice, not an imitation), it is actionable under the common law tort of appropriation. Drawing an analogy to Motschenbacher v. R.J. Reynolds Tobacco Co., where the appropriation of a famous driver's distinctive car was found to be a tort, the court held that a voice is an even more distinct and personal attribute of identity. The defendants' actions—first trying to hire Midler and then instructing a sound-alike to imitate her precisely—show they sought to trade on the value of Midler's identity and goodwill.
Analysis:
This decision established the tort of voice misappropriation under California's common law right of publicity, significantly expanding the concept of a protectable 'identity' beyond just name and likeness. It created a precedent that a celebrity's distinct personal attributes, such as a unique and widely recognized voice, are protected from commercial exploitation through imitation. The ruling provides a cause of action for performers against the use of sound-alikes in advertising, closing a loophole where neither copyright law nor specific right of publicity statutes would apply.
