Ford was marketing cars. They attempted to get Bette
Midler to sing in one of their commercials, but she declined. Instead
they got another singer and told her to sing one of Midler's famous songs
while "sounding as close to Bette Midler as possible."
Ford had procured the rights to use the song from the
copyright holder, so there was no problem with them using the song in general.
Midler had a policy not to perform in any commercials at
all.
When the commercial came out, Midler's associates all
swore that it was her. Midler sued Ford for violating of her right to
publicity.
Ford argued that they did not use Midler's image or name in their
commercials, so they hadn't done anything wrong.
The Trial Court found for Ford.
Midler appealed.
The Trial Court called Ford's conduct, "that of an
average thief."
However, the Court found no legal principle
prevented the imitation of Midler's voice.
In the notes to 17 U.S.C.A. §114(b), it was stated
that, "mere imitation of a recorded performance would not constitute
infringement even where one performer deliberately sets out to simulate
another's performance as exactly as possible."
Under 17 U.S.C. §102(a), a voice is not
copyrightable.
The Appellate Court reversed and remanded for trial.
The Appellate Court admitted that Midler did not have a
remedy under copyright law, because you can't copyright the sound of your own voice.
However, the Court found that Midler had a
remedy under tort law.
California tort law recognizes that an appropriation of
the attributes of one's identity is a tort.
If Midler could show that Ford was impersonating her in
order to reap a financial gain, she might be able to recover.
That's a question for the jury to decide.
Voice is an attribute of identity, and a celebrity's
voice has value, which makes it a property. Ford wasn't appropriating
Midler's work (which would be a copyright issue), they were
appropriating Midler's right to publicity (which is a tort
issue).
Since Midler, as a matter of principle doesn't make
commercials, how was Ford infringing on her economic interests? It wasn't like she was losing out on income because companies were going to hire the impersonator instead of her.
Ford was perhaps unjustly enriched, but is that enough?
