19 Colum.-VLA J.L. & Arts 129 (1994-1995)
The Human Persona as Commercial Property: The Right of Publicity

handle is hein.journals/cjla19 and id is 135 raw text is: The Spring 1995 Horace S. Manges Lecture -
The Human Persona as Commercial Property:
The Right of Publicity
by J. Thomas McCarthy*
INTRODUCTION: TWO SETS OF EVENTS THAT CHANGED
RIGHT OF PUBLICITY LAW
There are two sets of events in the past few years that will continue
to increase interest in and awareness of the right of publicity. One set of
events occurred in California from 1988 to 1992. That was a trilogy of
right of publicity cases - all resulting in a win for plaintiffs - that were
given nationwide publicity and attention. Those were the Bette Midler,
Vanna White and Tom Waits cases. The other half of this set of events
consists of the publication this year of the final version of the new
Restatement of the law of Unfair Competition, put together by two
highly skilled reporters and a blue ribbon group of advisors from the
prestigious American Law Institute. The new Restatement strongly
supports the right of publicity.'
The California side of these events started in 1985 when the Ford
Motor Company and its advertising agency Young & Rubicam advertised
the Ford Lincoln and Mercury with a series of television ads in what the
advertisers called the yuppie campaign. Different popular songs of the
seventies were sung as background on each commercial, the ad agency
trying to get 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. Bette Midler was asked by Ford Motors to specially record
the song for a commercial. She refused. And she did not give Ford
permission to use the original recording of her voice for the television ad.
Young & Rubicam sought out a singer who had sung backup 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 she imitated Midler
very well. Many people who heard the commercial thought that it was
in fact Bette Midler singing. Ford did not infringe the copyright in the
*    Professor of Law, University of San Francisco. The author is the author of
McCARTHY ON TRADEMARKS AND UNFAIR COMPETITION (3d ed. 1992); THE RIGHTS OF
PUBLICITY AND PRIVACY; and McCARTHY'S DESK ENCYCLOPEDIA OF INTELLECTUAL
PROPERTY.
This article is based upon a speech given by Professor McCarthy at the Spring 1995
Horace S. Manges Lecture, delivered on March 9, 1995 at the Columbia University School
of Law.
Copyright  1995 by J. Thomas McCarthy.
1.  RESTATEMENT (THIRD) OF UNFAIR COMPETITION  46-49 (1995).

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