Imitation, according to an old adage, is the sincerest form of flattery. But recent events suggest that it is also one of the surest routes to a lawsuit. Late last month, entertainer Bette Midler won $460,000 in a landmark case in the federal district court of Los Angeles: she sued an advertising agency that she claims had hired a singer to imitate her rendition of Do You Wanna Dance? in a television commercial for the Ford Motor Co. For several years, many advertisements featuring celebrity look-alikes have run disclaimers in Canada and the United States to avoid getting sued. But the Midler case extends the concept of unlawful appropriation of identity to sound-alikes for the first time. Peter Laird, a lawyer with the Los Angeles firm of Arrow Edelstein &
Laird, which represented Midler, told Maclean’s: “The message to advertisers and their agencies is that they can no longer use sound-alikes in television commercials, where they have been rampant for many years.”
Another celebrity who has entered the fray is gravelvoiced singer Tom Waits, whose suit will go to trial in the federal district court of Los Angeles early in 1990. He is seeking $2.3 million from Plano, Tex.-based Frito-Lay and the ad agency Tracy-Locke of Dallas. Waits claims that a radio ad for tortilla chips appropriated his distinctive voice and blues-flavored singing style. Up until late last week, there was also a pending case involving a voice from the grave. The estate of pop singer Bobby Darin, who died in 1973, was suing the fast-food giant McDonald’s Inc. of Oak Brook, 111. Lawyers for Darin’s estate and his son, Dodd, claimed that the “Mac Tonight” ad campaign, which features a singing character with a crescent moon head, unlawfully imitated Darin’s chart-topping 1959 rendition of Mack the Knife. But on Friday, the Darin estate decided to drop the suit. Still, Los Angeles entertainment lawyer Kirk Pasich says that
other celebrities are likely to take action as a result of the Midler decision. Predicted Pasich: “People who have been hesitating will look at the thousands of dollars here and say ‘Me too.’ ”
In Midler’s case, vindication was a long time coming—and her court award was only a fraction of the $11.5 million that she had initially sought. The dispute arose in the mid-1980s after Midler declined a request from Young & Rubicam Inc., a leading Madison Avenue advertising agency, to record a revised version of her 1973 hit, Do You Wanna Dance?, for a Ford ad. The advertising agency then hired Ula Hedwig, who had been one of Midler’s backup singers for 10 years, to perform the song in the commercial, made in 1985, in an arrangement similar to Midler’s. When Midler’s suit reached the courts in 1987, a California judge found no
legal principle to support it. A year later, a federal appeals court reversed the decision, granting her the right to sue for the amount she would have made if she had done the advertisement. But she was not permitted to seek further punitive damages. Midler and her lawyers are currently contemplating an appeal for punitive damages.
Heated exchanges enlivened the recent round of court proceedings. Asked on the witness stand for her opinion of Ford products, Midler replied: “I think they’re cheap. I think they’re poorly made and that they fall apart in a year.” In the end, the court dismissed a suit that Midler launched against Ford—but she went on to sue the advertising agency successfully. Some advertising executives say that her lawsuit’s outcome will have a far-reaching negative impact. Said Young & Rubicam Inc. senior vicepresident Rosemary Nelson, herself a lawyer: “If you want to use a song, you will have to make the decision whether your version sounds like any, some or all of the existing versions.”
While there has never been a major Canadian court case involving sound-alikes, the technique has been used by some of the country’s agencies. Members of the nation’s legal and advertising communities expect some fallout from the Midler decision. Said Keith McKerracher, president of the Institute of Canadian Advertising, a Toronto-based trade organization: “You can’t use public figures without their permission—and trying to use look-alikes or sound-alikes is just trying to break the law cheaper.”
Now, as lawyers consider
the implications of the Midler
case, new Los Angeles suits are arising that could take the question of image appropriation even further. Adam West, star of the 1960s TV show Batman, is suing for $1 million over a television commercial that ran for the Zayres department-store chain a few years ago. West argues that the actor portraying Batman in the commercial copies his own characterization of the role. Meanwhile, TV personality Vanna White, of the popular game show Wheel of Fortune, has launched a suit of her own. An ad for a video cassette recorder manufactured by Samsung Ltd. features a robot who, like White, is a blond, dazzlingly dressed game-show hostess. In one of the fastest-growing areas of litigation, even a semblance of a resemblance can mean trouble.
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