Entertainer Bette Midler should get $400,000 from an advertising agency that imitated the Grammy-winning singer's voice in a TV commercial, a federal jury has ruled.
The U.S. District Court jury, which began deliberating last week, decided that Young & Rubicam violated Midler's rights by imitating her voice.In a statement given reporters, the agency called the award "unfortunate but bearable."
"I hope my victory will in a small way contribute to higher ethical standards in the advertising field," Midler said in a statement. "I also hope it will cause companies to pause before they knowingly and willfully trod on the property rights of others."
The actress and singer said she was considering appealing a court ruling that barred the jury from awarding punitive damages because Young & Rubicam had a good-faith belief it was acting within the law.
At the trial, Midler testified, "I don't do commercials," and said one of her former backup singers was hired to perform the song "Do You Wanna Dance?" for a 1986 Mercury Sable car commercial after she turned down a request from Ford Motor Co.
Midler, who has appeared in such films as "Beaches" and "Outrageous Fortune," filed the lawsuit against Young & Rubicam Inc. in 1987 seeking $2.5 million in damages.
Midler also filed a $10 million lawsuit against Ford, but U.S. District Judge A. Wallace Tashima ruled last week there was insufficient evidence to proceed against the car company.
Midler's attorney, Peter Laird, said he hoped "national advertisers and advertising agencies will think twice in the future before they disregard the rights of artists."
Laird told the jury his client never agreed to sing in the commercial, and she never would have. The agency "took what they couldn't buy from Midler," he said.
"She had the right to say no. That right was taken away from her," Laird said.
Defense attorney Robert Callagy said Young & Rubicam never intended to imitate Midler's voice but instead "tried to do credible renditions of the original recording of her 1971 hit song. He said the agency bought a license to use the song.
"The mere imitations of a performance is not a violation of copyright law. We imitated the record; we did not imitate the voice," said Callagy.
Two years ago, a judge threw out Midler's case, ruling the agency acted like "the average thief" but had broken no laws. An appeals court overturned that decision.
Prior to the start of deliberations, Tashima instructed jurors, "When a professional singer's voice is widely known and is deliberately imitated in order to sell a product, the singer's rights have been violated."