Sound-alikes: If the advertiser re-records the song, however, they take a risk if they use a “sound-alike,” that is a recording intended to imitate the sound of a popular record or the style of a popular recording artist. In the case of “Groovin”, my client re-recorded the song on a synthesizer and the result clearly could not be mistaken for the original recording by The Young Rascals. But in the 1980s, singer Bette Midler sued over a sound-alike version of her recording of "Do You Wanna Dance" that was used in a Ford commercial, and she won. The Federal Court of Appeals held:
"We need not and do not go so far as to hold that every imitation of a voice to advertise merchandise is actionable. We hold only 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. Midler has made a showing, sufficient to defeat summary judgment, that the defendants here for their own profit in selling their product did appropriate part of her identity."
Bette Midler v. Ford Motor Company (9th Cir. 1988). The Circuit Court found it relevant that the advertising company, Young & Rubicam, actually asked Midler if they could use her voice. She denied permission. They then asked one of Midler’s backup singers if she could make herself sound “as much as possible” like the Bette Midler recording of “Do You Wanna Dance.” Midler won the case even though Young & Rubicam secured a license from the copyright owner of the song and owned all the rights to the new recording.
On a similar note, legendary singer-songwriter Tom Waits, has steadfastly declined to license his music for commercial use and has filed several lawsuits against advertisers who used his material without permission. Waits first lawsuit was against Frito Lay for imitating his voice to sell chips. The 9th Circuit Court of Appeals affirmed an award of $2.375-million in his favor (Waits v. Frito-Lay (9th Cir. 1992)). Similar to the Midler case, the advertiser approached Waits to perform one of his songs in an advertisement. Waits declined the offer, and Frito-Lay hired a Waits impersonator to sing a jingle in a style and manner similar to Waits. Waits won the lawsuit, becoming one of the first artists to successfully sue a company for using an impersonator without permission. The Midler and Waits cases show that an advertiser should proceed with caution if they want to produce a commercial using a “sound-alike” recording.