Monday, November 8, 2010

Featured Case - Midler v. Ford: Commercial Appropriation

Bett Midler sued Ford in the 1980's for appropriating her identity in the form of her distinctive voice.  Ford's 1980's ad campaign was aimed at "YUPPIES" (Young Urban Professionals).  The idea was to use some evocative song from the 1970's, that would remind these 1980's disposable spenders of their more carefree college days. "Gosh, if I owned that car it would be just like being back in college." After Midler spurned Ford's entreaties to use her rendition of "Do You Want to Dance" from 1973, Ford's advertising agency hired one of Midler's former back-up singers, Ula Hedwig, to record a version.  She was instructed to "sound as much as possible like the Bette Midler record." The 9th Circuit ruled "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 in California."

I like to start the class discussion of this case by showing a minute or so of an early version of the song.  I prefer this one from Cliff Richard and the Shadows because of its "old school" set and its energy.  Plus, Richard introduces the song by saying that the band will perform a "song that is more in [their] idiom." (That's a vocabulary enhancer for those students paying close attention.) The Beach Boys' version is also available.  Or you may prefer the original by Bobby Freemen, set here to a cartoon video.

Then, I play 30 seconds or so of Midler's version:

Then, of course, comes the actual 1986 mercury sable ad:

Finally, I have this site open so as the ad ends, I click on the mp3 sample of Midler's Do you Want To Dance (found about halfway down the page). By a neat coincidence, the mp3 clip of Midler's version begins at precisely the point where Ula Hedwig's version from the ad ends. The result is a pefect side by side match of the two versions allowing students to make their own assessments regarding Ford's appropriation of Midler's "identity" in the form of her distinctive voice.

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