Booth v. Colgate-Palmolive: New York's Refusal to Protect a Voice Alone

Booth v. Colgate-Palmolive Co., 362 F. Supp. 343 (S.D.N.Y. 1973) (No. 71 Civ. 932), is the restrictive bookend to the American voice-imitation cases. Shirley Booth — the stage and screen actress who won an Academy Award for Come Back, Little Sheba and became a household name as the title character of the television series Hazel — alleged that Colgate-Palmolive and its advertising agency, Ted Bates & Co., had used an imitation of her distinctive voice in commercials for the detergent “Burst.” She brought claims for unfair competition, defamation, and violation of the Lanham Act. Applying New York law, the Southern District of New York rejected every theory, holding that the mere imitation of a performer’s voice — absent use of her name, likeness, or some additional misrepresentation — is not actionable. Decided eleven years after the First Circuit allowed Bert Lahr’s claim to proceed, Booth shows how sharply the protection of a voice can vary from one state to another.

At a glance

• Case: Booth v. Colgate-Palmolive Co., 362 F. Supp. 343 (S.D.N.Y. 1973) (No. 71 Civ. 932)
• Court: U.S. District Court for the Southern District of New York, applying New York law
• Posture: Judgment for the defendants on all theories
• Holding: Imitating a performer’s voice, without using her name or likeness or creating an affirmative misrepresentation, does not state a claim for unfair competition, defamation, or false designation of origin under the Lanham Act
• Significance: The narrowest of the early voice cases; it reflects New York’s restrictive statutory privacy regime and its reluctance to recognize a common-law right in a voice

The claims and the court’s disposition

Booth’s grievance was intuitive: she had built a recognizable vocal persona, the commercials traded on it, and she had neither consented nor been paid. But intuition met the architecture of New York law, which channels appropriation claims through a narrow statutory privacy right and is wary of common-law theories that would restrain competition.

On unfair competition, the court held that imitation of a voice, standing alone, is not enough. New York unfair-competition law, the court reasoned, required something more — the use of the plaintiff’s name or likeness, or her voice functioning as a trademark, or some affirmative act passing the defendant’s product off as the plaintiff’s. Booth’s voice had not been used as a source identifier for any goods of hers, and nothing in the commercials told consumers that Shirley Booth endorsed Burst. Absent that additional element, the court treated the imitation as lawful competition, expressing concern that recognizing a free-floating right in a vocal style would “create undue restraints on the market” and cut against the federal policy favoring competition in the imitation of uncopyrighted matter.

On the Lanham Act, the analysis followed from the same premise. Section 43(a) reaches false designations of origin and misrepresentations likely to confuse consumers about source or sponsorship. The court found no violation because Booth’s voice did not operate as a trademark and the commercials made no false representation that she sponsored or endorsed the product. Without a likelihood of consumer confusion about origin or endorsement, there was no federal claim.

On defamation, the court found nothing defamatory. Unlike Lahr, where the plaintiff alleged that an inferior imitation falsely suggested his decline, Booth could not show that the commercials conveyed a false and damaging statement about her. New York defamation law required a direct reference to the plaintiff and demonstrable injury to her professional reputation, and the court found neither.

Why New York said no

The result is best understood against New York’s distinctive approach to identity rights. New York has never recognized a broad common-law right of publicity; instead, appropriation claims run through Sections 50 and 51 of the Civil Rights Law, a statute enacted in 1903. By its terms, that statute protects against the unauthorized commercial use of a living person’s name, portrait, or picture — and courts have read it narrowly, declining to extend it beyond those enumerated categories. A voice is not a name, a portrait, or a picture. Booth therefore had no statutory privacy claim to invoke, which is why her case had to be litigated as unfair competition, defamation, and Lanham Act theories in the first place.

That statutory backdrop explains the court’s caution. In a jurisdiction whose legislature had chosen specific, enumerated identity interests for protection, a federal court applying state law was reluctant to manufacture a common-law right in a voice that the statute conspicuously omitted. The court’s market-competition rhetoric — its worry about restraining imitation and innovation — is the doctrinal expression of that institutional modesty. Where a state has spoken narrowly, the common law does not rush to fill the gap.

The jurisdictional fault line: Lahr, Booth, and Midler

Placed beside its companions, Booth completes a revealing map of mid-century American law on voice imitation:

• Massachusetts (Lahr, 1962): voice imitation can state claims for unfair competition and defamation, because the law there was willing to treat the diverted audience and the false impression of decline as cognizable injuries.
• New York (Booth, 1973): voice imitation alone is not actionable, because the controlling privacy statute protects only name, portrait, and picture, and the common law would not extend further.
• California (Midler, 1988): voice imitation is actionable as appropriation of identity, because California recognized a robust common-law right of publicity that the court held a distinctive voice could trigger.

The lesson is that, for most of the twentieth century, whether a famous voice could be imitated with impunity depended almost entirely on the forum. Booth is the case that proves there was never a single national rule — only a patchwork that turned on each state’s privacy and unfair-competition traditions.

Open questions

Booth’s reasoning leaves several seams. The court required an “additional element” — name, likeness, or trademark use — but did not catalogue what else might qualify; a sufficiently explicit suggestion of endorsement, for instance, might satisfy both the unfair-competition and Lanham Act standards even without a name. New York law has also evolved since 1973, and the precise scope of Sections 50–51 as applied to voice, sound-alikes, and now AI-generated audio remains contested; the statute’s enumerated-categories structure sits uneasily against synthetic media that evoke a person without using any name or picture. There is also a live question whether modern false-endorsement doctrine under the Lanham Act, as developed after Booth, would treat a convincing celebrity sound-alike as inherently implying sponsorship — a theory the 1973 court did not have before it in developed form.

Implications

• A voice alone may not be protected — it depends on the state. New York demands an additional element such as name, likeness, or trademark use; counsel must check the governing jurisdiction before assuming a remedy exists.
• Statutory privacy regimes constrain creativity. Where, as in New York, a statute enumerates protected attributes, courts are reluctant to read a voice into the list.
• Plead the additional element. A plaintiff in a Booth-type jurisdiction should anchor the claim to an affirmative misrepresentation of endorsement or to use of name or likeness, not to imitation standing alone.
• Forum and choice of law are outcome-determinative. The Lahr/Booth/Midler split shows that the same facts can win or lose depending on which state’s law applies.
• The analysis predates modern AI questions. Booth’s enumerated-categories logic will be tested hard by synthetic voices that evoke a person without using a name or image.

Frequently asked questions

Why didn’t Shirley Booth have a right-of-publicity claim? New York does not recognize a broad common-law right of publicity. Its statutory privacy right (Civil Rights Law §§ 50–51) protects only name, portrait, and picture — not voice — so she was left to argue unfair competition, defamation, and the Lanham Act, all of which the court rejected.

How can Booth and Lahr reach opposite results on similar facts? They apply different states’ law. Massachusetts in Lahr was willing to recognize unfair-competition and defamation theories for voice imitation; New York in Booth required an additional element and found none. There was no uniform national rule.

Would the result be different today? Possibly, depending on the theory and the jurisdiction. Modern false-endorsement law and new statutes addressing digital replicas have shifted the landscape, but in New York the enumerated-categories structure of §§ 50–51 still limits pure voice claims, which is why recent reform efforts have focused on synthetic-media legislation rather than common-law expansion.

Authorities and sources

• Booth v. Colgate-Palmolive Co., 362 F. Supp. 343 (S.D.N.Y. 1973) (No. 71 Civ. 932) — Justia and Studicata case brief.
• Lahr v. Adell Chemical Co., 300 F.2d 256 (1st Cir. 1962) — the contrasting Massachusetts result, Justia.
• Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988) — the later California right-of-publicity decision, full text via Law.Resource.Org.
• New York Civil Rights Law §§ 50–51 — the statutory privacy right limited to name, portrait, and picture, via the New York State Senate.