Midler v. Ford Motor Co.

849 F.2d 460 (9th Cir. 1988)



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. 


Defendant company and defendant 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 sing the song, which she refused. The "sound alike" imitated plaintiff to the best of her ability. After the commercial was aired, plaintiff and the "sound alike" were told by a number of people that it sounded exactly like plaintiff. Neither plaintiff's name nor her picture was used in the commercial, and the agency had a license from the copyright holder to use the song. Plaintiff filed an  action for appropriation of her distinctive voice for use in an advertisement but summary judgment was granted in favor of defendant. Plaintiff appealed and the court reversed judgment. On appeal, the court reversed.


Did the district court err in ruling that there was no  legal principle preventing imitation of plaintiff's voice? 




Pllaintiff's distinctive voice was protected from appropriation. A voice is as distinctive and personal as a face. The human voice is one of the most palpable ways identity is manifested. We are all aware that a friend is at once known by a few words on the phone. These observations hold true of singing, especially singing by a singer of renown. The singer manifests herself in the song. 

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