Not so Funny Funny Business

Open your local paper and you will see advertisements, turn on your car radio and you will hear advertisements.  Small business owners typically use newspapers and radio ads to sell their products and services, but the process of selecting the proper advertisement is often difficult.  [1]  Selection of the proper media is not the only decision the business owner faces.  The advertisement’s content is also important.   Off the wall advertisements can be beneficial to a business because they can make a business stand out.  [2] Recently a local Champaign-Urbana radio station has spread two wacky ads through the airwaves.  Both radio advertisements imitate famous movie characters in an attempt to entice listeners to go tanning.   What characters you ask, why “Bormat” and “Neapolitan” of course.  Surely, these simple name changes will shield the business that ran the ads from legal liability, right?  This article will briefly analyze these radio ads under the privacy law tort of misappropriation.     

Misappropriation is one of the four ways that a defendant can invade a plaintiff’s privacy.  [3] “One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.” [4]  A defendant commonly commits the tort of misappropriation through the “appropriation and use of the plaintiff’s name or likeness to advertise the defendant’s business or product, or for some similar commercial purpose.” [5]  Courts have dealt with the appropriation of the likeness of celebrities in commercials.

     In Middler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988), Ford Motor Company used a sound alike to sing a Bette Middler song for a commercial.  [6]  Middler then brought an action against Ford Motor Company. [7]  The court held that Ford Motor Company appropriated Middler’s identity and that her claim was sufficient to defeat summary judgment.  [8]  Yet, the court limited its holding by stating that it only “hold[s] 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.” [9]

     In Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992), singer Tom Waits brought a voice misappropriation action against Frito-Lay, Inc. for using a singer to imitate his voce in a radio commercial. [10] At the trial level, the jury found in favor of Waits. [11]  On appeal, the court held that the voice misappropriation claim was “legally sufficient.” [12] 

     Exposing a business to liability for misappropriation can be dangerous.  The court in Waits affirmed a $500,000 punitive damage award of against Frito-Lay, Inc. because a “[a] rational jury . . . could have found that the defendants, in spite of their awareness of Waits' legal right to control the commercial use of his voice, acted in conscious disregard of that right by broadcasting the commercial.” [13]

     Whether the advertisements mentioned at the start of this article amount to misappropriation is a decision for the court, but it seems likely that a successful argument could be made.  In accordance with the Restatement definition for misappropriation, both ads imitate the voices of famous movie characters to advertise a business’s product.  Not only do sound alikes imitate the characters’ voices, but they also include specific references and quotes from the movies that the characters appear in.   

     Advertising is an important part of running a business, and it should be treated as such.  This article is not meant to serve as legal advice, but rather as a warning to small business owners to advertise carefully. [14] When in doubt ask someone that is qualified to give an informed answer.   

End Notes:

[1] Howard E. Van Auken, B. Michael Doran, & Terri L. Rittenburg, An Empirical Analysis of Small Business Advertising, J. OF SMALL BUS. MGMT., Apr. 1992, at 87, 87.   

[2] Elizabeth J. Goodgoold, Getting Persona, ENTREPRENEUR, Mar. 2003, at 65, 65.   

[3]  RESTATEMENT (SECOND) OF TORTS § 652A (1977).  A person can also invade another’s privacy by “(a) unreasonable intrusion upon the seclusion of another, . . . (c) unreasonable publicity given to the other’s private life, . . . or (d) publicity that unreasonably places the other in a false light before the public . . . .”  Id. at (a), (c), (d).

[4] Id. at § 652C.

[5] Id. at cmt. b.

[6] Middler v. Ford Motor Co., 849 F.2d 460, 461 (9th Cir. 1988)

[7] Id.

[8] Id. at 463-64.

[9] Id. at 463.

[10] Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1096 (9th Cir. 1992).

[11]  Id.

[12] Id. at 1112.

[13] Id. at 1105-06.

[14] See also Christopher C. Larkin, Traps for the Unwary: Avoiding Some Common Mistakes in Intellectual Property Law, 27 BEVERLY HILLS B. ASSN’N J. 89 (1993) (warning that “virtually anything that is associated with a celebrity may expose your client to liability”).