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79 Trademark Rep. 681 (1989)
Public Personas and Private Property: The Commercialization of Human Identity

handle is hein.journals/thetmr79 and id is 697 raw text is: Vol. 79 TMR PUBLIC PERSONAS AND PRIVATE PROPERTY: THE COMMERCIALIZATION OF HUMAN IDENTITY* By J. Thomas McCarthy** I. INTRODUCTION: THE BETTE MIDLER SOUND-ALIKE CASE In 1985 the Ford Motor Company and its advertising agency Young & Rubicam advertised the FORD, LINCOLN and MER- CURY with a series of television ads in what the advertisers called the yuppie campaign. The object was to make an emotional connection with that group with which some marketers are so enamored: the yuppies. The aim was to bring back memories of the 1970s, when the yuppies were in college so that they would link those happy memories with the cars being advertised. Dif- ferent popular songs of the seventies were sung as background on each commercial, the ad agency trying to obtain the singers that had originally popularized the songs to specially record them for the Ford ads. One of those songs was the 1973 hit, Do You Want to Dance, sung by Bette Midler. In several cases, Ford could not get per- mission and had the songs sung by a sound alike. Bette Midler was one of the singers who was asked by Young & Rubicam, but she did not agree to specially record the song for a commercial and she did not give Ford permission to use the original recording of her voice in the television ad. Undeterred, Young & Rubicam sought out singer Ula Hedwig, who had been a backup singer for Bette Midler for some years. She was told to sound as much as possible like Bette Midler singing Do You Want to Dance and Hedwig imitated Midler to the best of her ability. She did well. Almost everyone who heard the com- mercial thought that it was in fact Bette Midler singing. Ford did not infringe the copyright in the song itself-it had a license from the owner of copyright in the musical work. Midler sued Ford. The district court judge, while describing Ford's conduct as that of the average thief, still dismissed Mid- * This article is based on an address given at the Brand Names Education Foun- dation's second annual A. Bradlee Boal Memorial Lecture at Northwestern University, Chicago, Illinois, February 27, 1989. Copyright © 1989 J. Thomas McCarthy. ** Professor of Law, University of San Francisco; Of Counsel to Limbach, Limbach. & Sutton, San Francisco, California, Associate Member of USTA; member of the Editorial Board of The Trademark Reporter®; author of The Rights of Publicity and Privacy (1987 with 1989 rev) and Trademarks and Unfair Competition (2d ed 1984 with 1988 rev).

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