Maxwell v. N.W. Ayer, Inc.
159 Misc. 2d 454 (1993)
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Rule of Law:
New York law does not recognize a common-law cause of action for the unauthorized imitation of a person's voice, as the state's statutory right of privacy is limited to the use of a person's name, portrait, or picture.
Facts:
- Plaintiff was the voice actor for the 'Punchy' character in Hawaiian Punch commercials for many years, with his last performance prior to the dispute occurring in 1980.
- The 'Punchy' character is a registered trademark owned by Hawaiian Punch.
- In 1990, defendant Proctor & Gamble Company acquired Hawaiian Punch and hired defendant N.W. Ayer, Inc. to produce new commercials.
- Ayer hired plaintiff to perform the voice-over for one new commercial.
- The contract plaintiff signed for this commercial explicitly stated that he had no right, title, or interest of any kind in the commercial or the role.
- For subsequent commercials, Ayer did not ask plaintiff to audition.
- Plaintiff alleges that Ayer's employee, Jerry Rice, instructed other voice-over performers to imitate plaintiff's distinctive voice and characterization of 'Punchy'.
- Plaintiff, who uses a wheelchair, also alleged that he was not rehired for subsequent commercials due to disability discrimination.
Procedural Posture:
- Plaintiff filed a complaint against defendants Proctor & Gamble Company and N.W. Ayer, Inc. in a New York trial court.
- The complaint asserted four causes of action: unlawful discriminatory practices, tortious appropriation of property rights, conversion, and unjust enrichment.
- Defendants filed a motion for summary judgment seeking dismissal of the entire complaint.
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Issue:
Under New York law, is there a common-law cause of action for unjust enrichment, misappropriation, or conversion based on the unauthorized imitation of a person's voice in a commercial?
Opinions:
Majority - Joan B. Lobis, J.
No. Under New York law, there is no common-law cause of action for the unauthorized imitation of a person's voice, as the sole remedy for misappropriation of identity is statutory. The court reasoned that New York does not have a common-law right of privacy or publicity; the right is governed exclusively by sections 50 and 51 of the Civil Rights Law. This statute protects only an individual's 'name, portrait or picture' and has been consistently interpreted by courts not to extend to voice imitation or 'sound-alike' claims. Citing precedents like Stephano v. News Group Publs., the court held that if a claim does not fall within the parameters of the Civil Rights Law, a plaintiff cannot rely on common-law theories such as misappropriation, conversion, or unjust enrichment. The court found the facts analogous to Booth v. Colgate-Palmolive Co., which held that voice imitation alone does not constitute unfair competition under New York law. Therefore, all of the plaintiff's common-law claims based on voice imitation were dismissed. The court, however, denied summary judgment on the disability discrimination claim, finding that a disputed issue of material fact existed as to why the defendants chose not to rehire the plaintiff.
Analysis:
This decision solidifies the principle that New York's right of publicity is strictly a statutory creation, unlike in jurisdictions such as California that recognize a broader common-law right. The ruling clarifies that attributes of identity not explicitly enumerated in the Civil Rights Law, such as a distinctive voice, are not protectable property rights under common-law theories. This puts performers on notice that they must rely on contractual agreements, rather than tort law, to protect their vocal styles from imitation in New York. The case serves as a crucial precedent distinguishing New York's narrow, legislatively-defined right of publicity from the more expansive common-law rights recognized elsewhere.
