## Facts

- Ford Motor Company and its advertising agency, Young & Rubicam, created television commercials using 1970s songs to trigger consumer nostalgia.
- For a Lincoln-Mercury commercial, the agency sought to use Bette Midler’s recording of “Do You Want to Dance” and pitched the concept using an edited version of her 1973 recording.
- After Ford approved the concept, the agency asked Midler’s manager whether Midler would participate; the request was refused because it was for a commercial.
- The agency then hired Ula Hedwig, a former backup singer for Midler, specifically because she could sound like Midler.
- Hedwig was played Midler’s recording and instructed to sound as much like the Midler record as possible; she attempted to imitate Midler’s voice closely when recording the commercial track.
- After the commercial aired, multiple people told Midler the commercial sounded exactly like her recording.
- The commercial did not use Midler’s name or image, and Ford had licensed the musical composition; the dispute concerned using a sound-alike to evoke Midler’s identity.

## Issues

1. Whether deliberate imitation of a widely known professional singer’s distinctive voice in a commercial, without consent, is actionable as a California common-law appropriation of identity.
2. Whether the common-law misappropriation claim is preempted by federal copyright law when the composition is licensed and a new recording is used.
3. Whether California Civil Code § 3344 forecloses a common-law claim when the plaintiff’s actual voice is not used.

## Decision

- The Ninth Circuit reversed summary judgment for Ford and Young & Rubicam and remanded.
- The court held that deliberately imitating a distinctive, widely recognized singer’s voice to sell a product can constitute an actionable appropriation of identity under California common law.
- The court held the claim was not preempted by federal copyright law because it targeted appropriation of identity, not rights in the composition or sound recording.
- The court treated § 3344 as cumulative of, not exclusive of, common-law remedies; the absence of statutory coverage for imitation did not bar the common-law claim.

## Legal Principles

- Under California common law, appropriation of identity may occur through use of distinctive personal attributes that identify a person to the public, not only through name or likeness.
- A professional singer’s distinctive voice may function as an identifier of identity comparable to other recognized indicia.
- Intentional imitation designed to make listeners think the celebrity is performing, for commercial gain, can support liability for misappropriation of identity.
- Federal copyright law does not preempt a state-law claim when the claim targets a non-copyrightable personal attribute (identity) and requires an extra element beyond copying of a protected work.
- California Civil Code § 3344 supplements rather than displaces California common-law protection against commercial appropriation of identity.

## Conclusion

The Ninth Circuit recognized that California common law can impose liability when advertisers deliberately use a sound-alike to appropriate a famous singer’s distinctive voice for commercial advantage, even if the song is licensed and the celebrity’s name or image is not used, and it allowed the claim to proceed without copyright preemption or statutory displacement.


Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988)