Midler v. Ford Motor Co.: Misappropriation of Celebrity's Voice by Imitation: The Costliest Form of Flattery Note 57 UMKC Law Review 1988-1989

57 UMKC L. Rev. 635 (1988-1989)
Midler v. Ford Motor Co.: Misappropriation of Celebrity's Voice by Imitation: The Costliest Form of Flattery

handle is hein.journals/umkc57 and id is 637 raw text is: Midler v. Ford Motor Co.: Misappropriation of Celebrity's Voice
by Imitation: The Costliest Form of Flattery
I. INTRODUCTION
In Midler v. Ford Motor Co.' the United States Court of Appeals for the
Ninth Circuit held that when a distinctive voice of a professional singer is
widely known and is deliberately imitated in order to sell a product, the sellers
have appropriated what is not theirs and have committed a tort in California.'2
This Note discusses the birth of the tort of misappropriation of name and
likeness, how the terms have been developed and refined over the years, the
expansion of the tort to include a right of publicity, and how Midler v. Ford
Motor Co. contributes to this development.
II. FACTS
In 1985, Ford Motor Company and its advertising agency began a series of
television commercials to advertise the Ford Lincoln Mercury.3 This series of
commercials was called The Yuppie Campaign and was an attempt to bring
college memories back to baby boomers.4 Bette Midler is a nationally known
actress and singer.5 Ford Motor Company decided to use Midler's 1973 version
of Do You Want To Dance? as part of the Yuppie Campaign advertising.6
Ford's advertising agency contacted Ms. Midler's manager in an attempt to get
her to perform the song personally; the offer was refused. The agency subse-
quently hired one of Ms. Midler's former back-up singers to perform the song
and to sound as much as possible like the Bette Midler record.8 Midler filed
suit in the United States District Court for the Central District of California
alleging four substantive causes of action: (1) unfair competition, (2) violation
of Midler's right of privacy, (3) violation of Midler's right to publicity, and (4)
violation of California Civil Code § 3344.9 The district court held there was no
legal principle preventing imitation of Midler's voice'0 and gave summary
judgment for Ford Motor Co. Midler appealed.
1. 849 F.2d 460 (9th Cir. 1988).
2. Id. at 463.
3. Id. at 461.
4. Id.
5. Id.
6. Id.
7. Id.
8. Id.
9. Appellant's Opening Brief at 2, Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988)
(No. 87-6168). In addition, Midler was denied a motion to add a cause of action under § 43(a) of
the Lanham Act, 15 U.S.C. § 1125(a) (1982).
10. See Midler v. Ford Motor Co., 849 F.2d 460, 462 (9th Cir. 1988).
11. Id.

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