Supreme Court Upholds Midler Copycat Ruling : Law: Widespread significance seen in verdict awarding the singer $400,000 from an advertising agency that used a vocal impersonator in a 1986 TV commercial.

The Supreme Court said Monday that singer Bette Midler can collect a $400,000 judgment from the advertising agency that imitated her voice in a 1986 television commercial.

The high court action, upholding a Los Angeles federal court ruling, puts advertisers on notice. They may not “deliberately imitate” the “distinctive” style of a well-known singer to sell their products, the courts said. If so, the performers can sue the advertisers under California law for committing a type of fraud or theft.

“The fact that the Supreme Court let this ruling stand represents a major expansion of the right of publicity,” said Don Engel, a Los Angeles attorney who specializes in the field. “It will certainly cause ad agencies to sit up and pay attention.”

Lawyers for the agency in this case, Young & Rubicam, contended that the company had purchased the copyright to use the song “Do You Wanna Dance” for a 1986 commercial for the Lincoln-Mercury division of Ford Motors and therefore it should be immune from damages.

But the federal courts in Los Angeles, and now the Supreme Court, without dissent, rejected that argument. Because Young & Rubicam deliberately imitated Bette Midler’s rendition of “Do You Wanna Dance,” the company can be forced to pay damages to the singer, the courts said.

Midler originally had sought $2.5 million in damages from the advertising agency and $10 million from Ford. However, the lower courts ruled that she was not entitled to “punitive damages.”

Once the appellate courts established the legal ground rules, a jury in Los Angeles rendered the $400,000 verdict for Midler in October, 1989.

The song, “Do You Wanna Dance,” was written and first recorded by Bobby Freeman in 1958. It has since been recorded by at least eight other singers, including in 1972 by Midler on her album “The Divine Miss M.”

When Young & Rubicam first sought to use the song in a TV ad, it obtained copyright permission from Freeman and asked Midler if she would perform the song. But she said she did not do commercials.

The advertising firm then hired Ula Hedwig, a former backup singer for Midler, who recorded the song for the commercial. During the trial, company officials conceded that Hedwig was told to imitate Midler.

The TV ad ran from January to June, 1986, when Midler filed her lawsuit. In the key ruling, the U.S. 9th Circuit Court of Appeals concluded that a deliberate imitation of a performer can be a “tort” or legal wrong.

“We need not and do not go so far as to hold that every imitation of a voice to advertise merchandise is actionable,” the appeals court 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 and have committed a tort.”

Right-of-publicity lawsuits are nothing new in the entertainment world.

Six years ago, Los Angeles attorney Bertram Fields represented the Beatles and won a $10-million judgment against Beatlemania Inc., a theater company that produced a stage show and movie featuring four Beatle impersonators.

“A performer’s likeness, be it their face, name or their voice, is a very valuable property and no company has the right to capitalize on that likeness for commercial purposes without giving the performer compensation,” Fields said. “And there is absolutely no reason why a voice that is identifiable to the public should be any less protected than their face.”

In 1989, a federal court awarded singer Tom Waits $2.4 million in damages from Frito Lay and its advertising agency for employing an impersonator to ape his voice in a corn-chip radio ad. That case is on appeal.

Guitarist Carlos Santana pushed the right-of-publicity concept into new terrain last year when he sued Miller Beer for hiring an imitator to perform a sound-alike guitar rendition of his 1970 hit “Black Magic Woman” for a television ad without authorization.

Santana settled that case out of court, but this month, attorneys for pop singer Chris Isaak demanded that Infiniti Motor Car Co. stop running an ad that features what he calls a sound-alike guitar instrumental lifted from Isaak’s 1990 hit “Wicked Game.”

“The Bette Midler ruling is a clear and logical extension of the direction that the law protecting the intangible rights of celebrities has been heading for the last decade,” said attorney Gary Stiffelman of the Century City-based entertainment law firm, Ziffren, Brittenham & Branca, which represents Isaak and Santana. “But what the entertainment community is waiting to see is how far the court is prepared to go in expanding the concept.”

Special correspondent Chuck Philips in Los Angeles contributed to this story.