Takeaway
In short, this case holds that California common law can protect a famous singer’s distinctive voice from deliberate commercial imitation, even when the advertiser lawfully licenses the underlying song and never uses the singer’s actual recording, name, or image.
Ford and its advertising agency, Young & Rubicam, created a television campaign that used popular 1970s songs to evoke college memories for the “Yuppie” audience. The agency preferred to use the singers who had made the songs famous. For an advertisement using “Do You Want To Dance,” it first presented Ford with an edited recording of Bette Midler’s performance from her album The Divine Miss M. Midler’s manager declined the agency’s request that she perform in a commercial.
Young & Rubicam then hired Ula Hedwig, who had sung backup for Midler for ten years. The agency instructed Hedwig to sound as much as possible like Midler’s recording, and Hedwig deliberately imitated Midler’s vocal performance. Although neither Midler’s name nor image appeared in the commercial, listeners—including an entertainment manager—believed that Midler had sung it. Ford had licensed the song from its copyright owner.
Midler sued Ford and Young & Rubicam. The district court characterized the defendants’ conduct as that of an “average thief,” but granted summary judgment for the defendants because it believed no legal rule barred imitation of Midler’s voice. Midler appealed.
Issue #1
Whether the First Amendment immunizes the use of a deliberate vocal imitation in a commercial advertisement.
Holding
No. The First Amendment does not provide immunity for a purely commercial use that exploits a performer’s identity rather than serving an informative or cultural function.
Reasoning
The court recognized that the First Amendment protects substantial media use of a person’s likeness or sounds. But the purpose of the use matters: use that is informative or cultural receives protection, while use that merely exploits the individual portrayed does not receive the same immunity.
Ford’s advertisement was designed to sell automobiles, not to report on or comment upon Midler. The alleged imitation therefore fell within commercial exploitation of identity, not protected informational or cultural expression.
Issue #2
Whether federal copyright law preempts Midler’s claim because Ford had licensed the song “Do You Want To Dance.”
Holding
No. Midler’s claim was not preempted because she did not seek to control use of the copyrighted song; she sought relief for appropriation of her distinctive vocal identity.
Reasoning
The court distinguished Sinatra v. Goodyear, where a singer’s claim effectively sought protection for a song and its arrangement despite the advertiser’s copyright license. A state-law claim that gives a performer control over a copyrighted work would conflict with federal copyright law.
Midler did not challenge Ford’s licensed use of “Do You Want To Dance.” Instead, she alleged that the defendants deliberately copied an attribute of her identity by directing another singer to imitate her voice.
A voice itself is not copyrightable because copyright protects original works fixed in a tangible medium, not a person’s unfixed vocal identity. Thus, recognizing a claim for appropriation of Midler’s voice would not grant her a copyright-like monopoly over the song or recording.
Issue #3
Whether Midler established a traditional unfair-competition claim based on the imitation of her voice.
Holding
No. The court did not find actionable unfair competition on the record presented.
Reasoning
The court found Lahr v. Adell Chemical, involving a vocal imitation in a commercial, more analogous than Sinatra. Lahr recognized that imitation might support unfair competition when it saturated the plaintiff’s audience and curtailed the plaintiff’s market.
That theory did not fit Midler’s circumstances. The short Ford commercials would not saturate her audience or curtail her market, and Midler did not herself make television commercials or compete with the defendants in that field.
Issue #4
Whether California Civil Code section 3344 directly provides Midler a claim for the use of a sound-alike singer.
Holding
No. Section 3344 did not apply because the commercial used Hedwig’s actual voice, not Midler’s voice, and “likeness” in the statute refers to a visual image rather than a vocal imitation.
Reasoning
Section 3344 creates liability for the knowing use of a person’s name, voice, signature, photograph, or likeness in advertising. The defendants did not use Midler’s name, image, or actual recorded voice; they used Hedwig’s voice while directing Hedwig to imitate Midler.
The statute did not eliminate Midler’s possible common-law claim. Its remedies are cumulative, which expressly leaves intact common-law protections for appropriation of identity.
Issue #5
Whether California common law recognizes a right-of-publicity claim when an advertiser deliberately imitates a widely known professional singer’s distinctive voice to sell a product.
Holding
Yes. A deliberate imitation of a widely known professional singer’s distinctive voice for commercial gain can appropriate an attribute of identity and constitutes a tort under California law.
Reasoning
California recognizes a proprietary interest in a person’s identity. In Motschenbacher v. R.J. Reynolds, the court protected a race-car driver’s identity even though his face was not visible in the advertisement, because the commercial used identifying signs associated with him and conveyed that he endorsed the product.
The same principle applied here. Ford and Young & Rubicam first sought Midler herself, then specifically located a former backup singer and instructed her to sound as much as possible like Midler. Those actions supported the conclusion that the defendants sought the commercial value of Midler’s identity, not merely a generic rendition of the song.
A distinctive voice is a deeply personal and readily recognizable attribute of identity, comparable to a face. For a renowned singer, the voice is especially bound up with the performer’s public identity and economic value.
The court limited its holding. Not every imitation used in advertising is necessarily actionable. But Midler produced sufficient evidence that the defendants deliberately imitated her widely known distinctive voice to sell their product, appropriating value that belonged to her. Summary judgment was therefore improper.