Summary of Midler v. Ford Motor Co. 1988, U.S. Court of Appeals, 9th Circuit, 849.F.2d 460
Procedural Posture: P appealed a judgment of US District Court granting summary judgment in favor of D in P’s action for appropriation of her distinctive voice for use in an advertisement.
Facts: D advertised cars with a series of tv commercials. Different popular songs of the 70s were used, and the agency tried to get the original singers to sing them. Where it failed to get the original singer, the agency used ‘sound-alikes.’ D requested that P sing the song, and P refused. D hired a sound alike, instructing her to imitate P to the best of her ability. After the commercial aired, P and the sound alike were told by numerous people that it sounded exactly like P. P’s name and likeness were not used in the commercial, and D had obtained permission from the copyright holder to use the song. District Court said there was no legal principle preventing imitation of P’s voice and granted summary judgment in favor of D. P appealed. Appellate court held that P’s unique and recognizable voice was a part of her identity, and thus protected from appropriation.
Claims of the Parties: P pursued a common law claim against D for using her distinctive voice in an advertisement, which she had not authorized.
Issues and Resolutions: Is a voice a distinctive and personal feature of a person, which a person has the right to control from appropriation without his or her permission? > Yes.
Rationale: P did not seek damages for use of the song, which would have been pre-empted by copyright law. A voice is uncopyrightable, yet is a unique feature that distinguishes a person, especially a singer, just as a face or a name. For a person whose voice is widely known, it is unlawful to imitate that person’s voice to sell a product if the person has not authorized it.
Rules: A popular singer’s voice is part of her identity and may not be imitated without her consent.
Case Integration: A voice is a part of a person’s identity, and thus controllable against unauthorized use by that person’s right of publicity.
2) Disruption and disturbance to the artist if their voice is imitated without permission could be grave, and thus should fall closer to the side of personal property in the spectrum.
4) The recognition of Midler’s voice in connection with her song was the motivation behind the commercial and the merchandise sales. D did not have the right to use P’s voice, since it is the distinctive feature of the artist and is protected against unauthorized use to sell products.
7) A voice cannot be copyrighted. The use of a similar sounding voice, but a different song could be the same thing, because the issue was not the song, but the voice singing it.