Midler v. Ford Motor Co.
849 F.2d 460 (9th Cir. 1988)
Professional singer sued automobile company and advertising agency based on advertisement for the automobile in which impersonation was used in a commercial. The United States District Court for the Central District of California, entered summary judgment in favor of Ford Motor Co., and Midler appealed.
Statement of Facts
Ford Motor Company and its advertiser Young & Rubicam Inc., were releasing a series of nineteen commercials for what they called “The Yuppie Campaign.” Ford was preparing to release these commercials, with the motive to create a nostalgic feeling in their prospective clients. Different songs from the seventies were sung for each commercial. The agency made an attempt to get the original singers for each song to sing to them, but failed in ten cases and had to hire “sound alikes.” It was during this time that Young & Rubicam had contacted Midler, a nationally known singer and actress, and had asked her to sing for their Ford Lincoln Mercury commercial. Midler declined. Ultimately Young & Rubicam hired Ula Hedwig, who used to be one of Midler’s backup singers, to sing one of Midler’s songs, “Do You Want to Dance,” from Midler’s 1973 album, which Young & Rubicam had obtained the copyrights. The agency asked Hedwig to sound as much like Midler as possible for the purpose of selling their product for profit. The imitator accepted and did the commercial. Midler was then told by a number of people that Hedwig singing that song sounded exactly like Midler.
Is the use of a sound alike singer to deliberately imitate a well known, professional celebrity singer with a distinctive voice, in order to sell a product, a violation of the celebrity’s property interest?
Yes. To misappropriate the distinctive voice of a professional singer that is well known, in order to sell a product, is a violation of a celebrity’s property interest.