Bette Midler v Ford
From Personality Rights Database
|
| United States |
Contents |
[edit] 1 Bette Midler v. Ford Motor Company, and Young & Rubicam
Case Name : Bette Midler v. Ford Motor Company, a Delaware Corporation, and Young & Rubicam
Key words: Voice, singer imitation, secondary meaning property rights
Country: U.S.A.
Citation: 849 F.2d 460
Court: United States Court of Appeals (for the Ninth Circuit)
Judges: Hug, Jr., Tang and Noonan, Jr., Circuit Judges
Date: 22.06.1988
Case N°: 87-6168
Importance: Imitation of a famous singer’s voice is a tortuous appropriation
Facts: In 1985, Ford Motor Company and its advertising agency, Young & Rubicam, launched “The Yuppie Campaign”, a series of nineteen television commercials to advertise the Ford Lincoln Mercury. The aim was to make an emotional connection with Yuppies, bringing back memories of when they were in college. Different popular songs of the seventies were sung on each commercial. The agency usually tried to get the original singers but after a refusal from Bette Midler’s agent, they hired a “sound-alike” to perform “Do You Want To Dance”, a song taken from a 1973 Midler album. She was told to sound as much as possible like Bette Midler. Neither the name nor the picture of Midler was used in the commercial
[edit] 2 Decision and Reasoning
[edit] 2.1 The district court decision
The district court considered the defendant’s conduct as amounting to theft, in a “If we can't buy it, we'll take it” manner. However, it found no legal basis to prevent the use of a voice imitation.
[edit] 2.2 The answer of the Court of Appeal
Noonan, Circuit judge, allowing Bette Midler’s appeal, delivered the opinion of the court.
[edit] 2.2.1 When to allow the use of a person’s identity by the media?
Two situations which can allow the media to use a person’s identity were borne in mind during the case. The first one is the freedom of expression and of the press, as guaranteed by the First Amendment. In that situation, the purpose of the use is the criterion. So long as it is cultural or informative, the use is allowed. As soon as there is another form of exploitation, protection is not further guaranteed. The second situation is described by the federal copyright law, according to which the “mere imitation of a recorded performance would not constitute a copyright infringement even where one performer deliberately sets out to simulate another's performance as exactly as possible”.
[edit] 2.2.2 The nature of the claim
Midler won the case because the nature of her claim was very specific. As Noonan Jr recalled, she did not try to prevent the use of the song, she did not claim that there was a secondary meaning in this song. If that was so, she would have failed. She did not seek damages for the use of the song, and moreover because her voice was not copyrightable as the sounds are not “fixed”, she was not pre-empted by federal copyright law. But on what basis could the appeal be allowed?
[edit] 2.2.3 The legal basis to allow the appeal
Some previous cases, with similar facts had been considered in the light of unfair competition. However in the present case, the court refused to think that a one minute commercial damaged Midler’s audience or “curtailed her market”. Especially because Midler never did any commercials, she was not in competition with the defendants. The appeal could not be allowed on that basis.
California Civil Code section 3344 was also considered; it protects a person who suffered because of the use of his/her “name, voice, signature, photograph or likeness, in any manner”. In the present case, the name of Bette Midler never appeared in the commercial, the voice used was not hers and the term “likeness” only referred to visual image but not vocal resemblance. However, Noonan Jr considered that the existence of the Civil Code did not preclude the recourse to any other common law cause of action.
Indeed, common law rights protected the appropriation of someone’s image or voice as “property rights”. The case Motschenbacher v. R.J. Reynolds Tobacco Co was analysed; and even though it dealt with physical likeness, Judge Koelsch recalled that California recognized an injury from “an appropriation of the attributes of one's identity.” It was therefore irrelevant whether the person represented was actually the celebrity or not, so long as the ad suggested that she was, by using some symbols usually associated to her, and in a way that she endorsed the product: “the defendants here used an imitation to convey the impression that Midler was singing for them”.
[edit] 2.2.4 Voice, an attribute of the identity
Noonan Jr went on to conclude that the voice is an attribute of a person’s identity. That can be easily demonstrated by the fact that the defendants tried to get Bette Midler sing for them and then instructed the sound-alike to perform as much as possible like the plaintiff. They would not have done so if the voice did not represent a value on its own. It was an attribute of Midler’s identity, and one which was even “more distinctive and more personal” than sometimes visual accessories. If that is so, then the same can be said for a singing as well. Because the famous singer manifested herself in the song, “to impersonate her voice was to pirate her identity”. Therefore, 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.
[edit] 2.3 Result
Midler showed sufficiently to defeat summary judgment, that the defendants for their own profit had appropriated part of her identity.
| List of States |
|---|
|
Argentina · Australia · Canada · France · Germany · Mexico · South Africa · Spain · United Kingdom · United States |
| United States | ||
|---|---|---|
| Federal | US Federal law | |
| States | Alabama | Alaska | Arizona | Arkansas | California | Colorado | Connecticut | Delaware | Florida | Georgia | Hawaii | Idaho | Illinois | Indiana | Iowa | Kansas | Kentucky | Louisiana | Maine | Maryland | Massachusetts | Michigan | Minnesota | Mississippi | Missouri | Montana | Nebraska | Nevada | New Hampshire | New Jersey | New Mexico | New York | North Carolina | North Dakota | Ohio | Oklahoma | Oregon | Pennsylvania | Rhode Island | South Carolina | South Dakota | Tennessee | Texas | Utah | Vermont | Virginia | Washington | West Virginia | Wisconsin | Wyoming | |
