Thing 001001 - The Yuppie Campaign

Presentation

In 1958 Bobby Freeman wrote and recorded Do You Want to Dance. Many versions of Do You Want to Dance were subsequently recorded by artists such as Cliff Richard and the Shadows, the Beach Boys, the Mamas and Papas, John Lennon, Jan and Dean, etc. In 1973 Bette Midler released the song Do You Want to Dance on the album The Divine Miss M.

In 1985 the advertising agency Young & Rubicam made a series of television commercials for the Mercury Sable car, manufactured by Ford Motor Company, titled “The Yuppie Campaign.” The aim was to establish a connection with yuppies by bringing back memories of when they were in college. Each commercial used a rerecording of a different popular song from the 1970s. One of the selected songs was Bette Midler’s version of Do You Want to Dance. The agency contacted Bette Midler’s, but she refused to collaborate. Following, Young & Rubicam approached Ula Hedwig whom was one of the backup singers for Midler for ten years. Hedwig made a recording of Do You Want To Dance for the commercial. Young & Rubicam bought a license to use the song from Bobby Freeman, the copyright holder of the song.

In 1986, after the commercial was aired, Midler was told by a few people that the singer on the sound track sounded like her. On April 29, 1986, she filed a complaint and started an action against Ford based on unauthorized use of a sound-alike in the commercial to imitate her voice. On July 20, 1987, the court case Midler v. Ford Motor Company was heard at the United States District Court in California. Judge Ferdinand Fernandez held that:

The exclusive rights of the owner of copyright in a sound recording [...] do not extend to the making or duplication of another sound recording that consists entirely of an independent fixation of other sounds, even though such sounds imitate or simulate those in the copyrighted sound recording.

The court decided in favor of Ford Motor Company. Midler appealed this decision, relying on the 1984 California statute that protects publicity rights for celebrities. On June 22, 1988, the court case Midler v. Ford Motor Company was heard at the United States Court of Appeals. Judge Noonan, held that:

At issue in this case is only the protection of Midler’s voice. [...] Mere imitation of a recorded performance would not constitute a copyright infringement. [...] A voice is not copyrightable. The sounds are not “fixed”. What is put forward as protectible here is more personal than any work of authorship. [...] [T]he common law rights are also property rights. [...] California will recognize an injury from “an appropriation of the attributes of one’s identity”. [...] [Ford] here used an imitation to convey the impression that Midler was singing for 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. [...] A voice is as distinctive and personal as a face. The human voice is one of the most palpable ways identity is manifested. [...] To impersonate her voice is to pirate her identity. [...] Midler has made a showing [...] that [Ford] here for their own profit in selling their product did appropriate part of her identity.

The court reversed the previous decision. Young & Rubicam brought motion for partial summary judgment based on the claim that the sound track intended to imitate the record for which they had the rights and not Midler’s voice. On September 20, 1991 the court case Midler v. Young & Rubicam was heard at the United States Court of Appeals. Judge Noonan, held that:

Copyright law protects authors of original works, such as the song Do You Want to Dance. There are no issues of copyright law, as such [...]. However, sufficient evidence was presented to support the jury’s finding that Young & Rubicam deliberately imitated Midler’s voice.

The court concluded that Bette Midler’s vocal quality and style of singing were entitled to the same protection as the “likeness” of her image under publicity rights.

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