Intellectual Property Keyed to Merges
Midler v. Ford Motor Co
Facts
Young & Rubicam, Ford Motor Co.’s (Ford) (Defendant) ad agency, developed a series of television commercials designed to appeal to “yuppies” b evoking memories of college days through use of popular song hits of the 1970s. One such commercial was to feature the song Do You Want To Dance,” originally performed by Bette Midler (Plaintiff). Midler (Plaintiff) was a nationally known singer/actress/comedienne whose albums had gone platinum and gold and had been nominated for an Academy Award. Ford (Defendant) approved the concept after viewing the proposed commercial with an actual recording of Midler (Plaintiff), but Plaintiff, through her agent, refused to rerecord the song for the commercial. Young and Rubicam subsequently hired a former back-up singer for Plaintiff to act as a “sound-alike.” The singer was told to “sound as much as possible like the Bette Midler record,” which she did so well that “a number of people” told Midler after the commercial aired that she “sounded exactly” like the original. Neither Plaintiff’s name nor picture was used in the commercial. Plaintiff sued for misappropriation of her right of publicity in her voice, and although the district court held that Ford (Defendant) and Rubicam had acted like “common thieves,” it granted Defendant’s motion for summary judgment because it believed Plaintiff had no legal basis for her claim.
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