Midler v. Ford Motor Co.

Midler v. Ford Motor Co.
849 F.2d 460 (9th Cir. 1988)
Untied States Court of Appeals for the Ninth Circuit

Facts: Ford Motor Company (D) advertised its vehicles with a series of 30 or 60 second television commercials. Different popular songs were sung on each commercial. Young & Rubicam (D), Ford’s advertising agency, tried to get the original people who actually sang and popularized the songs, to sing them. When the agency was unable to obtain the actual singer, it hired “sound alikes.” When the agency tried to hire Bette Midler, it was rejected. The agency then turned to Ula Hedwig, who was a backup singer for Midler for ten years. Ford then used Ula’s performance in its commercial. After the commercial was aired, Midler was told by a number of people that it sounded exactly like her. Midler then sued Ford Motor Company alleging the right of publicity.

Procedure: The district court believed that there was no legal principle preventing imitation of Midler’s voice and granted Ford’s summary judgment. Midler appealed.

Rule: If the purpose of the media’s use is informative or culture the use is immune, however, if it serves no such function but merely to exploit the individual portrayed, immunity will not be granted.
Issue and Holding: Whether Bette Midler has a right of publicity in her voice?—YES

Reasoning: A voice is as distinctive and personal as a face. The human voice is one of the most palpable ways identity is manifested.

Black Letter Law: Not every imitation of a voice is actionable. However, 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 CA.

Judgment: Because Midler has made a showing, sufficient to defeat summary judgment, that the Ds for their own profit in selling their product did appropriate part of her identity, the judgment of the district court is Reversed and remanded.

• The right of publicity does not apply only to celebrities.
• The right of publicity is derived from the “commercial advantage” wing of the tort of invasion of privacy, and can be invoked by anyone whose name or likeness was appropriate by another for commercial advantage.

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