849 F.2d 460 (9th Cir. 1988)
In 1985, Ford motor Company (defendant) and it 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.” Which is supposed to bring back memories of when they were in college. The agency tried to contact the original people who had popularized the songs, to sing them. This idea failed and decided to go with sound alike. When the agency was preparing the Yuppie campaign it presented the commercial to its client by playing an edited version of Bette Midler (Plaintiff) singing “Do you Want to Dance?” taken from the 1973 Midler album. After Ford accepted the idea and the commercial idea, the agency contacted Ms. Midler’s manager, and stated that they are not interested in the commercial. The agency sought out one of Midler’s backup singer, Hedwig. They wanted someone that sounded like Midler. After the commercial that was aired, many people told Ms. Midler that it sounded exactly like her. Decision Below: 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 & Rubicom, and Ms. Midler appealed. Issue on Appeal: Can you hold every imitation of a voice to advertise merchandise is accountable for copyright distinctions? Conclusion: We conclude that Ms. Midler’s case that Ford’s profit in selling their products did appropriate part of her identity. Holding: Yes
The first Amendment protects much of what the media so in the reproduction of likeness or sounds. A primary value is freedom of speech and press. The purpose of the media’s use of person’s identity is central. If the purpose is “informative or cultural” the use is immune. A voice is as distinctive...