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Midler v. Ford Motor Co. | 849 F.2d 460 (1988)

A person appropriates the commercial value of another’s identity by using the other’s name or likeness without consent for financial gainIn the 1988 case Midler versus Ford Motor Company, the Ninth Circuit considered whether Ford could be liable for appropriation of identity for using a soundalike of singer Bette Midler in a television commercial without her consent.

In 1985, Ford and its advertising agency, Young and Rubicam, advertised the Ford Lincoln Mercury with a series of television commercials that included different popular songs from the 1970s. The commercials’ goal was to make an emotional connection with young professionals by bringing back memories of when they were in college. The agency tried to get the original singers for the songs but had failed in some cases and hired soundalikes.

One of the songs used in a commercial was by nationally known singer and actress Bette Midler, called Do You Want to Dance, from Midler’s 1973 album, The Divine Miss M. Initially, the agency contacted Midler’s manager about having her sing the song, but Midler wasn’t interested in singing in commercials. The agency then contacted Ula Hedwig, who sang backup for Midler for ten years, and asked Hedwig if she would be interested in mimicking Midler’s voice. Hedwig agreed and, after submitting a demo tape, got the job. The commercial later aired on television.

After the commercial aired, Midler was told that it sounded exactly like her voice in the song Do You Want to Dance. Also, many of Hedwig’s friends told her that they thought it was Midler singing in the commercial. Neither Midler’s name nor picture was used in the commercial.

Subsequently, Midler sued Ford and the agency in United States District Court for the Central District of California for appropriation of identity. Specifically, Midler argued that by using a soundalike of her voice in the commercial without her consent, Ford and the agency appropriated the commercial value of her identity for financial gain. In response, Ford and the agency moved for summary judgment, arguing they were entitled to judgment as a matter of law, which the district court granted. In granting the motion, the court concluded there was no legal principle preventing the use of an imitation of Midler’s voice in the commercial. Midler appealed the decision to the Ninth Circuit.

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