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When a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California.
Defendants Ford Motor Company ("Ford") and Young & Rubicam Inc. ("agency") advertised automobiles with a series of television commercials. Different popular songs of the 1970s were sung on each commercial, and the agency tried to get the original artists to sing them. Where it failed, the agency had the songs sung by "sound alikes." The agency requested that plaintiff Bette Midler sing a particular song made famous by her, which she refused. The "sound alike" imitated Midler to the best of her ability. After the commercial was aired, Midler and the "sound alike" were told by a number of people that it sounded exactly like Midler. Neither Midler's name nor her picture was used in the commercial, and the agency had a license from the copyright holder to use the song. Midler filed an action in federal district court for appropriation of her distinctive voice for use in an advertisement. The district court believed there was no legal principle preventing imitation of Midler's voice and granted summary judgment in favor of Ford and the agency. Midler appealed.
Was the imitation of Midler's voice in order to sell a product lawful?
The federal appellate court held that a voice is as distinctive and personal as a face. The human voice is one of the most palpable ways identity is manifested. The singer manifests herself in the song. To impersonate her voice is to pirate her identity. The court held that when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California. The court ruled that Midler had made a showing sufficient to defeat summary judgment and that Ford and the agency did appropriate part of her identity for their own profit in selling their product. The court reversed the trial court's order of summary judgment dismissing Midler's action and remanded for trial.