Do You Want to Dance?

In Midler v. Ford Motor Company, the Ninth Circuit created a right of publicity proscribing the imitation of professional singers’ voices for commercial purposes. Bette Midler, an actress and pop singer, declined to provide vocals for an ad campaign by Ford. Having already purchased the rights to the 1973 hit, "Do You Want To Dance?, Ford turned to one of her backup singers, Ula Hedwig, and instructed her to “sound as much as possible like the Bette Midler record.” Although the court dismissed Midler’s copyright, unfair competition, and statutory claims, it found a common law right of publicity: “…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…”

While this decision might be viewed as a triumph for creative, independent artists over exploitation by corporate interests, this definition fails to acknowledge the difference between distinctiveness of performance and distinctiveness of voice. The latter is a subset of the former that also includes the musical score, genre, and technique. Even if distinctiveness of voice were a judicially discernible attribute, the right of publicity doctrine itself lacks any clear theoretical foundation.

Distinctive voices and distinctive performances

The Midler court’s conception of distinctiveness of voice fails to distinguish it from other components of vocal expression—the composition, style, and technique, for example—that together comprise a distinctive performance. The resulting definition is sufficiently nebulous to consume the range of vocal expression. A major element of distinctiveness of performance comes from the score itself. Two people singing the same song will sound somewhat alike due to the notation of pitch, rhythm, text, instrumentation, and dynamics fixed within the score, rather than any distinctiveness of the voice itself. As a creation of the composer, not the singer, the composition is properly covered under existing copyright law. Style represents another significant component of distinct performance. All other things equal, two singers performing within the same genre will be less distinct in their performances than two singers performing in different genres. But while distinctiveness in vocal style might account for some of the distinctiveness in performance, it is neither the same as distinctiveness in voice. A third factor that accounts for distinctiveness of performance is the technique that singers use to project their voices. Within each style, there may only be minor differentiation in technical goals, but a huge variation in the skill at which singers are able to employ technique. But distinctiveness of skill should not be equated with distinctiveness of voice. Creating a property right in the former would be counterproductive to artistic development.

To the extent that it is possible to differentiate between performances after controlling for style, composition, and skill, the differences that remain may be identified as distinctiveness of voice. Some of this is quantifiable in acoustical terms: the relation of the fundamental pitch being sung with the clustering of partial harmonics in the sound spectrum. Qualitatively, voices might be distinguished in terms of timbre, color, or contour. Under this definition, the voice consists only of the vocal apparatus itself, a set of muscles and cartilages whose size and makeup is largely inherited. Perhaps Midler stands for notion that there is a publicity right in distinctive performance, a concept that includes the elements of score, style, technique, and voice.

Do we need a right of publicity?

Yet it remains unclear why the law should protect distinctive performance in particular or any other right of publicity in general. Courts at all levels have articulated a variety of economic arguments in support of the right of publicity include market failures caused by public goods, a lack of incentives, and misinformation. While these justifications might be supportable in patent and copyright law, the rationale is far less convincing in the right of publicity context since fame does not suffer from under-investment, and it is not a productive activity in itself.

First, celebrities simply do not require any additional incentive to invest in their fame. The revenues protected by the right of publicity, though potentially substantial, are merely incidental to their primary endeavors—most typically entertainment and sports. Even assuming that financial gain is the primary factor motivating people to labor in these fields, the rewards to those that achieve renown in popular sports and entertainment are sufficiently great that the ex post award of a right to control one’s public persona likely has little bearing on one’s choice to acquire skill ex ante. The Bette Midlers of the world are not motivated to invest in their fame per se; rather, they are primarily motivated by the rewards derived from becoming a successful entertainer.

Further, fame in itself is not a productive activity that should be promoted by the legal system. Unlike patents or copyrights which aim to promote science or authored works, respectively, the pursuit of fame is possibly deleterious. Divorced from intellectual, artistic, athletic, or social achievement, the promotion of fame for its own sake may encourage destructive, anti-social, or even criminal behavior.

The strongest argument in favor of publicity rights draws from trademark law, which aims to protect consumers from being misled about the origins of a product. Trademarks and publicity rights might serve to correct market failures caused by asymmetric information. By allowing sellers to register distinctive marks (or voices in Midler’s case), transactions costs are reduced since people can easily verify the origins of the products. But the creation of a property right in publicity is not narrowly tailored to correcting this information failure. Requiring a disclaimer (a voice over stating that Hedwig rather than Midler was singing) might be one straightforward solution. Further, the public interest in avoiding false suggestions of sponsorship can be pursued through an action for deceptive marketing. If this is the only rationale underlying the right of publicity, the doctrine is either superfluous or serves as an end-around for those unable to prove violations of existing laws.

Given these unsound theoretical bases, the ALI has cautioned that “courts may be properly reluctant to adopt a broad construction of the publicity right.” Restatement Third of Unfair Competitition 47. Granting property rights removes ideas and activities from the public domain at significant social cost. It should be reserved for only the most productive and creative endeavors. The right of publicity in one’s singing voice simply fails to meet this standard.

-- EdwardNewton - 02 Jun 2008

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