8 Comm. Law. 5 (1990)
The Tort of Imitation: Does This Remind You of Someone

handle is hein.journals/comlaw8 and id is 5 raw text is: The Tort of Imitation: Does This Remind You of

The old adage that flattery will
get you nowhere has received the
endorsement of a federal jury, at
least where flattery is encoun-
tered in its sincerest form, im-
itation, which is now a tort under
California common law. On Oc-
tober 30, 1989, a jury in the United
States District Court for the Cen-
tral District of California returned
a verdict in favor of Bette Midler
in her lawsuit against Young &
Rubicam Inc., the advertising
agency, based on a television
commercial for the Sable auto-
mobile which contained an imi-
tation of Midler's recording ofDo
You Wana Dance. Midler had
also sued Ford Motor Company,
the manufacturer of the car being
advertised. Midler's claims against
Ford were dismissed at a close of
the plaintiff's case based on a lack
of evidence to support Midler's
assertion that Young & Rubicam
was a legal agent of Ford at the
time the commercial was created.
The history of the lawsuit and
the trial court's application of the
guidelines set forth by the Ninth
Circuit in Midler v. Ford Motor Co.,
849 F.2d 461 (9th Cir. 1988),
which first recognized the com-
mon-law tort of imitation of a
professional singer, illustrate the
problematic nature of the new
tort, and presage difficult ques-
tions to come in future right-of-
publicity cases.
In the course of producing the
television commercial, Young &
Rubicam obtained a license from
Bobby Freeman, who wrote,
copyrighted and recorded the
song, Do You Wanna Dance, in
the 1950s. Freeman's recording of
*Robert M. Callagy and Mario A.
Aieta tried the Bette Midler case in
the United States District Court for
the Central District of California in
October 1989. They are colleagues
at Satterlee Stephens Burke &
Burke in New York City.

the song was a top hit, as were
versions subsequently recorded
by the Mamas and the Papas, the
Beach Boys, and Bette Midler.
Midler's version was released in
1972, and unlike previous ver-
sions, hers was slow and sen-
suous; it rose to number 17 on the
Billboard charts.
As part of about sixteen televi-
sion commercials used to pro-
As part of about sixteen
television commercials used to
promote Lincoln-Mercury
automobiles for 1985, 1986,
and 1987, Young & Rubicam
licensed, for background use
in those commercials, the
rights to a number of songs
popular in the 1960s and early
V V y
mote Lincoln/Mercury automo-
biles for 1985, 1986, and 1987,
Young & Rubicam licensed, for
background use in those commer-
cials, the rights to a number of
songs popular in the 1960s and
early 1970s. In each case, Young
& Rubicam purchased the copy-
right license from the copyright
holder. In the case of Do You
Wanna Dance, Young & Rubi-
cam paid Bobby Freeman's pub-
lishing company $45,000 for the
rights to use Do You Wanna
Dance on a background track for
a thirty- and sixty-second commer-
cial for the first six months of 1986.
Young & Rubicam asked Mid-
ler to perform Do You Wanna
Dance for one of the commer-
cials, and after having been re-
buffed by her in the spring of 1985,
they chose a backup singer from
Midler's former group, The Har-
lettes, to record the background
music track for the Sable com-

mercial. At that time, Midler had
last sung Do You Wanna Dance
in 1981. Her last singing tour was
in 1983.
The commercial, as produced,
featured the car and two models,
neither of whom bore any resem-
blance to Midler. The singing was
anonymous; neither the singer nor
the song were identified, but the
music and singing in the com-
mercial were a close imitation of
Midler's 1972 version of Do You
Wanna Dance.
Midler commenced an action in
1986, alleging unfair competi-
tion, violation of California Civil
Code § 3344, invasion of privacy
and infringement of her right of
publicity. Section 3344 of the Cal-
ifornia Civil Code, which prohib-
ited the use of another's name,
photograph or likeness in an ad-
vertisement without written con-
sent, had recently been amended
to include voice. Plaintiff fo-
cused her claim primarily upon
this state statute. The district court
held that the statute, which is a
codification of the California
common law of privacy, did not
apply to an imitation of one's
voice. The statute is applicable
only when an actual recording of
the plaintiff's voice is used in the
commercial. The district court
granted summary judgment to de-
fendants and held that plaintiff did
not have a viable claim under the
statute or the common law of Cal-
ifornia, noting that a state law
cause of action based on the facts
of Midler's case would seriously
risk running afoul of the federal
copyright laws.
Although Midler had not assert-
ed a copyright claim against
Young & Rubicam, federal copy-
right law plays a very significant
role in the law's treatment of Mid-
ler's claim, as was acknowledged
by the district court. Section 301
of the Copyright Act preempts all
legal or equitable rights that are
equivalent to any of the exclusive

Winter 1990 E] Communications Lawyer El 5

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