Business 8th Edition by Marianne Jennings

Exercise 24

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., advertised the Ford Lincoln Mercury with a series of nineteen 30- or 60-second television commercials in its "The Yuppie Campaign" The aim was to make an emotional connection with Yuppies, bringing back memories of when they were in college. The agency tried to get the "original people" that is, the singers who had popularized the songs, to sing them. When those efforts failed, the agency decided to go with "sound-alikes."
When Young Rubicam was preparing the Yuppie Campaign, it presented the commercial to its client by playing an edited version of Bette Midler (plaintiff\appellant) singing "Do You Want to Dance?" taken from the 1973 Midler album, The Divine Miss M. j After Ford accepted the idea and the commercial, Young Rubicam contacted Ms. Midler's manager, Jerry Edelstein. The conversation went as follows: "Hello, I am Craig Hazen from Young Rubicam. I am calling you to find out if Bette Midler would be interested in doing... ?" Mr. Edelstein: "Is it a commercial?" "Yes." "We are not interested."
Undeterred, Young Rubicam sought out Ula Hedwig, who had been one of the "Harlettes," backup singers for Midler for ten years. Ms. Hedwig was told by Young Rubicain that "they wanted someone who could sound like Bette Midler's recording of ['Do You Want to Dance?']" She was asked to make a demo tape. She made an a cappella demo and got the job. At the direction of Young Rubicam, Ms. Hedwig made a record for the commercial. She first had to listen to Ms. Midler's recording of it and was then 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. Hedwig was told by friends that they thought it was Ms. Midler.
Ms. Midler, a nationally known actress and singer, won a Grammy in 1973 as Best New Artist of the Year. She has had both gold and platinum records. She was nominated in 1979 for an Academy Award for Best Female Actress in The Rose, in which she portrayed a pop singer. Newsweek described her as an "outrageously original singer\comedienne" Time hailed her as "a legend" and "the most dynamic and poignant singer-actress of her time."
Ms. Midler filed suit against Ford and Young Rubicam for appropriation. Young Rubicam had a license from the song's copyright holder to use it. Neither the name nor the picture of Ms. Midler was used in the commercial. 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. The district court described the defendant's conduct as that "of the average thief." They decided, "If we can't buy it, we'll take it." The court nonetheless believed there was no legal principle preventing imitation of Midler's voice and so gave summary judgment for the defendants.
The First Amendment protects much of what the media do in the reproduction of likenesses or sounds. A primary value is freedom of speech and press. The purpose of the media's use of a person's identity is central. If the purpose is "informative or cultural" the use is immune; "if it serves no such function but merely exploits the individual portrayed, immunity will not be granted." It is in the context of these First Amendment and federal copyright distinctions that we address the present appeal.
Nancy Sinatra once sued Goodyear Tire and Rubber Company on the basis of an advertising campaign by Young Rubicam featuring "These Boots Are Made for Walkin'," a song closely identified with her; the female singers of the commercial were alleged to have imitated her voice and style and to have dressed and looked like her. The basis of Nancy Sinatra's complaint was unfair competition; she claimed that the song and the arrangement had acquired "a secondary meaning" which, under California law, was protectible. This court noted that the defendants "had paid a very substantial sum to the copyright proprietor to obtain the license for the use of the song and all of its arrangements." To give Sinatra damages for their use of the song would clash with federal copyright law. Summary judgment for the defendants was affirmed. If Midler were claiming a secondary meaning to "Do You Want to Dance" or seeking to prevent the defendants from using that song, she would fail like Sinatra. But that is not this case. Midler does not seek damages for Ford's use of "Do You Want to Dance" and thus her claim is not preempted by federal copyright law. What is put forward as protectible here is more personal than any work of authorship.
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." That case is more like this one.
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.
What is the difference between this case and the Nancy Sinatra case?