Midler v. Ford Motor Co.: When a Sound-Alike Steals an Identity

Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988) (No. 87-6168), decided June 22, 1988, is the foundational sound-alike decision in American right-of-publicity law. Ford and its advertising agency, Young & Rubicam, wanted Bette Midler’s 1973 recording of “Do You Want to Dance” for a Lincoln-Mercury campaign aimed at affluent baby boomers. They had a license to the song, but they wanted Midler’s voice. When she declined to perform, the agency hired one of her former backup singers, Ula Hedwig, and instructed her to “sound as much as possible like the Bette Midler record.” The result was a commercial that listeners — including some of Midler’s friends — believed featured Midler herself. Writing for a panel of the Ninth Circuit, Judge John T. Noonan held that the deliberate imitation of a widely known professional singer’s distinctive voice, in order to sell a product, is the appropriation of “what is not theirs” and a tort under California law.

At a glance

• Case: Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988)
• Docket / decided: No. 87-6168; decided June 22, 1988, opinion by Judge Noonan
• Holding: When a professional singer’s distinctive voice is widely known and is deliberately imitated to sell a product, the defendant has appropriated the singer’s identity and committed a tort in California
• Posture: District court’s summary judgment for Ford reversed and remanded for trial
• Key qualifier: The claim sounds in the common-law right of publicity (misappropriation of identity), not in copyright; the song itself was licensed and is not at issue

How the case reached the Ninth Circuit

The mechanics matter, because they explain why the dispute was not a copyright case. Ford held a valid license to use the composition “Do You Want to Dance.” It did not copy Midler’s sound recording — it commissioned a new one. So Midler had no copyright claim against either the agency or Ford: she did not own the song, and the recording that aired was lawfully made by someone else singing the same words and music. The district court, reasoning that nothing tangible owned by Midler had been taken, granted summary judgment for Ford.

The Ninth Circuit reversed by reframing the injury. The thing Midler complained of was not the use of a song but the use of her — her vocal identity, evoked in the minds of listeners by a singer hired and coached to mimic her. California’s common-law right of publicity protects against the appropriation of a person’s identity for commercial advantage, and the court held that a voice can be a vehicle of identity just as a name or face can be.

The distinctive-voice theory

Judge Noonan’s opinion grounded the holding in the proposition that identity is not exhausted by name and likeness. “A voice is as distinctive and personal as a face,” he wrote; “the human voice is one of the most palpable ways identity is manifested.” We recognize friends on the telephone from a few words; a singer “manifests herself in the song.” When a voice is a sufficient indicium of a celebrity’s identity, to imitate it deliberately for commercial gain is to pirate that identity.

The court was careful to fence the rule with limits, and those limits define the cause of action as precisely as the holding does:

• Distinctiveness. The voice must be distinctive — not every singer has a protectable vocal signature, and the tort reaches only voices that function as identifiers.
• Wide recognition. The plaintiff must be widely known, so that the imitation actually evokes the celebrity in the audience’s mind.
• Deliberate imitation. The defendant must have set out to imitate the plaintiff’s voice; an incidental resemblance, or an independently created performance, is not enough.
• Commercial purpose. The imitation must be used to sell a product or service — the tort is about commercial misappropriation, not artistic homage or parody.

Together these elements explain why Midler did not open the floodgates. The court was not protecting a style, a vocal range, or a genre. It was protecting against the targeted, intentional substitution of a soundalike for a famous performer in advertising — conduct that trades on the performer’s drawing power without consent.

Why imitation can violate publicity rights even though a voice is not copyrightable

The doctrinal heart of Midler is the line between copyright and the right of publicity, and it is worth stating precisely because the two are easy to conflate. Copyright protects original works of authorship fixed in a tangible medium — a particular sound recording, a particular composition. A voice, in the abstract, is none of those things: it is not a work, and it is not fixed. The Copyright Act therefore does not protect a person’s vocal quality, and 17 U.S.C. § 301 preempts only state-law claims that are equivalent to rights within the subject matter of copyright.

A voice-misappropriation claim survives preemption because it is not equivalent to a copyright claim. The plaintiff is not asserting rights in any fixed work; she is asserting rights in her identity. The extra element — the appropriation of a persona, the false suggestion that the celebrity participated — takes the claim outside the subject matter of copyright entirely. That is why Ford’s license to the song was beside the point. Lawful use of the work does not license use of the identity the work has come to signify in a particular singer’s rendition.

This is also why the right of publicity functions as a gap-filler. Copyright would have protected Midler had Ford copied her 1973 master; it offers nothing when a defendant recreates the sound from scratch. Absent a publicity tort, a celebrity’s most valuable commercial asset — public recognition of her distinctive performance — would be freely exploitable by anyone willing to hire a skilled mimic. Midler closed that gap under California common law.

The Waits companion

Four years later the Ninth Circuit confirmed that Midler stated a freestanding tort that could go to a jury and support substantial damages. In Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992) (No. 90-55981, decided August 5, 1992), the singer-songwriter Tom Waits — famous for his gravelly voice and publicly opposed to doing commercials — sued over a SalsaRio Doritos radio spot. Frito-Lay’s agency, Tracy-Locke, built a jingle modeled on Waits’s song “Step Right Up” and hired Stephen Carter, a musician who had spent years performing Waits material, to deliver it in Waits’s style. So close was the imitation that the agency’s own producer worried about the legal exposure and asked Carter to “back off.”

A jury found voice misappropriation and false endorsement under Section 43(a) of the Lanham Act, awarding $375,000 in compensatory damages and $2 million in punitive damages on the publicity claim, plus $100,000 under the Lanham Act. The Ninth Circuit affirmed the voice-misappropriation judgment and the punitive award, vacating only the Lanham Act damages as duplicative. Waits did two things Midler had not: it showed the tort surviving a full trial and a large punitive verdict, and it added a federal false-endorsement theory, recognizing that a celebrity has standing under the Lanham Act where a sound-alike falsely implies the celebrity’s sponsorship.

Open questions

Midler answered the threshold question but left much for later courts. How distinctive must a voice be, and who decides — judge or jury — when distinctiveness is contested? The opinion gives no metric. Nor does it resolve how the rule applies to non-singing voices, to artificial recreations rather than human mimics, or to performers known for an accent or vocal mannerism shared with others. The line between actionable imitation and protected parody, satire, or news use is acknowledged but not mapped. And because the right of publicity is a creature of state law, the Midler rule binds only where California law (or a sister state’s comparable doctrine) governs; there is no federal voice-misappropriation tort, and states diverge on scope, descendibility, and defenses.

The most consequential modern question is one Midler could not have anticipated: whether and how its reasoning extends to synthetic voices generated by machine-learning models trained on a performer’s recordings. The opinion’s logic — that the wrong is the appropriation of identity, not the copying of a fixed work — maps naturally onto AI voice cloning, but the elements of distinctiveness, deliberate imitation, and commercial purpose will have to be retested in that setting.

Implications

• A voice can be a protected aspect of identity. Advertisers cannot lawfully hire a sound-alike to evoke a famous performer they could not sign — a license to a song is not a license to the singer’s identity.
• The claim is publicity, not copyright. Because the tort protects identity rather than a fixed work, copyright preemption does not bar it and a recording license does not defeat it.
• Intent and recognition are the pressure points. Deliberate imitation of a widely known, distinctive voice for commercial gain is the gravamen; incidental or independent similarity is not.
• The exposure can be large. Waits confirms that voice misappropriation can support substantial compensatory and punitive damages and can travel alongside a Lanham Act false-endorsement claim.
• The doctrine is state-specific and evolving. The protection turns on the governing state’s right of publicity, and its application to AI-generated voices remains unsettled.

Frequently asked questions

Did Midler win money in this case? Not in this opinion. The Ninth Circuit reversed summary judgment and sent the case back for trial; the appellate decision established the legal theory rather than the damages. A jury later awarded Midler damages on remand.

Why couldn’t Ford rely on its license to the song? The license covered the musical composition, not Midler’s identity. The wrong was not using the song but deliberately imitating Midler’s distinctive voice so listeners would think she was singing — an appropriation of her persona that no song license authorizes.

Does this mean any sound-alike performance is illegal? No. The tort requires a distinctive, widely recognized voice, deliberate imitation, and a commercial purpose. Tribute performances, parody, and independently created work that merely resembles a singer generally fall outside the rule.

Authorities and sources

• Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. June 22, 1988) (No. 87-6168) — full text via the Harvard Berkman Klein Center.
• Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. Aug. 5, 1992) (No. 90-55981) — full text via Law.Resource.Org.
• Wikipedia, Midler v. Ford Motor Co. (secondary overview of facts and procedural history).
• McPherson LLP, Voice Misappropriation in California: Bette Midler, Tom Waits, and Grandma Burger (practitioner analysis).