Cengage Advantage Books: Foundations of the Legal Environment of Business 3rd Edition by Marianne Jennings

تمرين 9

Midler v. Ford Motor Co. 849 F.2d 460 (9th Cir. 1988)
Ford to Bette, "Do You Wanna Dance?"; Bette to Ford, "Not Really!"
Facts
In 1985, Ford Motor Company and its advertising agency, Young Rubicam, Inc., began preparing television commercials for its "The Yuppie Campaign." Young Rubicam had made its pitch to Ford on the campaign by using Bette Midler (plaintiff/appellant) singing "Do You Want to Dance?"
Ms. Midler refused to grant permission to Young Rubicam for use of the song. So, Young Rubicam hired Ula Hedwig, who had been one of the "Harlettes," backup singers for Midler for 10 years, to perform the song. Ms. Hedwig was told by Young Rubicam that "they wanted someone who could sound like Bette Midler's recording of ['Do You Want to Dance?']." Ms. Hedwig made a record for the commercial after being told to "sound as much as possible like the Bette Midler record."
After the commercial aired, Ms. Midler was told by a number of people that it sounded exactly like her. Ms. Midler filed suit against Ford and Young Rubicam for appropriation. The district court entered judgment for Ford and Young Rubicam, and Ms. Midler appealed.
Judicial Opinion
NOONAN, Circuit Judge
At issue in this case is only the protection of Midler's voice.
Bert Lahr once sued Adell Chemical Co. for selling Lestoil by means of a commercial in which an imitation of Lahr's voice accompanied a cartoon of a duck. Lahr alleged that his style of vocal delivery was distinctive in pitch, accent, inflection, and sounds. The First Circuit held that Lahr had stated a cause of action for unfair competition, that it could be found "that defendant's conduct saturated plaintiff's audience, curtailing his market."
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. At a philosophical level it has been observed that with the sound of a voice, "the other stands before me." A fortiori , these observations hold true of singing, especially singing by a singer of renown. The singer manifests herself in the song. To impersonate her voice is to pirate her identity.
We need not and do not go so far as to hold that every imitation of a voice to advertise merchandise is actionable. We hold only that when a distinctive voice of a professional singer that is widely known is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California. Midler has made a showing, sufficient to defeat summary judgment, that the defendants here for their own profit in selling their products did appropriate part of her identity.
[Outcome: Ms. Midler's case was tried, and she recovered $400,000 from the defendants in October 1989.]
Case Questions
1. In what context was Ms. Midler's voice sought?
2. Why is the confusion about who was singing in the commercial important for the case?
3. What is the difference between this case and the Bert Lahr case?