Rappers, Car Dealers and Trademarks — John Weighs In
Eric and I have been debating the claims in the 50 Cent and Snoop Dogg cases, and whether there can be trademark like protection for “speech patterns.” Not surprisingly, as one who likes “non-traditional” trademarks, I am coming down more strongly than he that there are potentially viable “trademark like” claims here.
I would argue that these claims are analogous to the “sound alike” body of cases, in which case this is not really a new legal frontier.
A voice is not copyrightable, because the sounds are not fixed. But courts have already recognized that speech patterns or voices acquire something like “secondary meaning” over time. The First Circuit recognized Burt Lahr’s unfair competition claim when Lestoil aired a commercial using an imitation of Lahr’s voice with a cartoon of a duck. (Lahr v. Adell Chemical Co., 300 F.2d 256 (1st Cir. 1962). More recently, Bette Midler successfuly argued that when her distinctive voice was deliberately imitated in a television commercial for Lincoln automobiles, it was an actionable tort under California common law for misappropriating part of her identity. Midler v. Ford Motor Company, 849 F.2d 460 (9th Cir. 1988). Tom Waits recovered $375,000 in compensatory damages and $2 million plus attorneys fees in punitive damages on theories of voice misappropriation under California common law (the same claim on which Ms. Midler was successful) and false endorsement under Section 43(a) of the Lanham Act, when Frito-Lay imitated his voice for a radio commercial. Waits v. Frito Lay, Inc., 978 F.2d 1093 (9th Cir. 1992).
So whether you call it “trademark infringement” or “unfair competition” or “voice misappropriation” or “right of publicity,” the courts have recognized that there is something wrong with deliberately imitating the well-known, distinctive voice of a professional singer or actor to sell a product. It may be out there at the boundaries of “trademark” law or “unfair competition” law, but courts are using trademark-like concepts to protect the singer’s or actor’s right to control the placement of his/her voice. And the car dealer situation would seem to be a logical extension of radio and television advertisements to print advertisements.
Yes, in this case, the words are printed in the car dealer’s advertisement rather than spoken like in a radio or television commercial. But the car dealer is using either the well-recognized exact quote (If the car is fly …) or the well recognized speech pattern (..izzle …) without permission to sell his cars.
The analysis in the car dealer case may be more factually intense, given that in that case there is some arguable relationship (express or implied) between the products and the spokesperson, when there was no authorization (authorization was denied, in fact) in the Waits and Midler cases.
In the end I agree with Eric on one thing … whether or not Mr. Barbera has successful defenses, unless he likes to spend money on lawyers and spend time in depositions and court appearances, he should find other ways to promote his dealership.