Appeal Court Reinstates Bette Midler Suit Against Ford : Singer Can Sue for Voice Impersonation

Singer-actress Bette Midler can sue the Ford Motor Co. for imitating her voice in its commercials, a federal appeals court held Wednesday, noting that “to impersonate her voice is to pirate her identity.”

Finding that a voice is as distinctive and personal as a face, a three-judge panel of the U.S. 9th Circuit of Appeals overturned a summary judgment in Los Angeles federal court and remanded the issue for trial.

Judge John T. Noonan Jr. wrote in an opinion issued in San Francisco that he and his colleagues do not hold that “every imitation of a voice to advertise merchandise is actionable.” He said, “We hold only 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.”

Midler, who won a Grammy in 1973 as the best new artist of that year and was nominated for an Academy Award for her portrayal of a down-and-out rock singer in “The Rose,” was asked by Ford’s New York advertising agency, Young & Rubicam Inc., to sing for its 1985 “Yuppie Campaign.”

The aim, according to Judge Noonan, was to establish an emotional connection with yuppies by using popular songs of the 1970s in 30- to 60-second TV spots advertising Ford, Lincoln and Mercury cars. When Midler was asked to sing “Do You Want to Dance,” from a 1973 album, her attorney, Jerry Edelstein, rejected the offer.

Despite the turn-down, Noonan said, Young & Rubicam hired Ela Hedwig, a backup singer for Midler for 10 years, who imitated Midler’s voice. No picture of the actress was used in the commercials.

When the case came before U.S. District Judge Ferdinand F. Fernandez, he described the circumstances as the conduct “of an average thief,” but he held that there was no legal principle preventing the imitation of Midler’s voice. He granted Ford and Young & Rubicam summary judgment.

In overturning the decision, the appeals panel noted the only issue is “the protection of Midler’s voice.

“Why did the defendants ask Midler to sing if her voice was not of value to them?” Noonan asked. “Why did they studiously acquire the services of a sound-alike and instruct her to imitate Midler if Midler’s voice was not of value to them? What they sought was an attribute of Midler’s identity. Its value was what the market would have paid for Midler to have sung the commercial in person.”

Midler was “very excited” after learning of the court’s reversal Wednesday, Edelstein said. He added: “I’m delighted that performers now have a remedy for wrong. For years, they have been taken advantage of.”

Ford officials and its attorneys in the case were not available for comment.