Copyright 1990 by the Board of Regents for Northern Illinois University;

I.  INTRODUCTION

Two women, separated by a century in time, occupy center stage in this reflection on the famous 1890 law review article, The Right To Privacy, by Samuel Warren and Louis Brandeis.1  The two women never met each other. Nor were either of them, apparently, acquainted with Warren and Brandeis.2  They are not relatives in any conventional sense of kinship, but they are surely sisters in a different way.  They are of special interest to lawyers because both women were famous comic actresses and singers who went to court to vindicate their celebrated identities.  This article connects their stories as two public people who have embodied one aspect of Warren=s and Brandeis' idea of the right to privacy.  Their names are Bette Midler and Marion Manola.  Bette Midler is widely acclaimed as "The Divine Miss M." A century earlier, Marion Manola was also a famous Miss M who, in her own way, was also divine.

Although there are many differences between the two women, their stories contain certain similarities worth considering in connection with Warren=s and Brandeis' famous 1890 law review article.  Although neither secured legal protection for what she called her "right to privacy," the two women's stories illuminate an often overlooked aspect of the Warren and Brandeis argument for recognition of a legal right to privacy.  That aspect concerns the property rights of performing artists to control the uses of their personalities in advertising.

This proprietary side of the right to privacy is sometimes thought to have little to do with Warren=s and Brandeis' original idea and argument.  Now frequently called by a different name--"right of publicity"3--this property right started out as an integral part of the original argument for recognition of the right to privacy. After a century, the original proprietary side of the right to privacy seems to have faded into the background.  My project here will be to bring forward for reflection what time has clouded. First, let me introduce each "Divine Miss M" and the story of her interaction with the right to privacy.  The implications of the stories of these two women for the meaning of the right to privacy, both as Warren and Brandeis originally conceived it, and as modern courts now enforce it, should then come more clearly into view.

II.  MARION MANOLA V. STEVENS & MYERS 4

 The world of comic opera and the glittering triviality of the musical theater along New York's Broadway in the gay nineties seem a lot closer to the world of the Divine Miss M than they do to the world of law reviews and legal scholars. It may therefore come as a surprise that the Warren and Brandeis article included as an example of the right to privacy a lawsuit brought by a famous prima donna from the comic opera.  The law review article opened with three pages of fairly general discussion of progress and the rights of man.5 Then, from out of this abstract background, stepped the first specific example of a living, breathing person who had vindicated the right to privacy. That individual was a woman.  Her name was Miss Marion Manola.

Warren and Brandeis took some pains to describe "[t]he alleged facts of a somewhat notorious case brought before an inferior tribunal in New York a few months ago . . . ."6  This is the way Warren and Brandeis referred to the New York Times.  Citing to newspaper accounts in the New York Times, Warren and Brandeis described in a footnote the intriguing facts of the case:

 Who was this Marion Manola?  Why did Warren and Brandeis bother to write about her in a law review article urging recognition of the right to privacy? One apparent reason was to emphasize that famous people, even notorious people, and certainly women, should be entitled to legal protection for their privacy rights.  Marion Manola's case makes the point, right up front, that the right to privacy was intended to include the right of even a comic opera prima donna on the public stage to prevent the use of her identity without her consent. This aspect of Warren=s and Brandeis' original notion of the right of privacy becomes much clearer when Marion Manola's lawsuit is set against the background of her own life and times.

Marion Manola led a fast and fascinating life.  She was one of the most renowned leading ladies of the American musical stage during the late 1880s and 1890s.  Born in 1865 in Oswego, New York, she was raised in Cleveland, Ohio, where she was known as Mina Stevens.  She sang in the church choir and in amateur theatricals where she met and married a young man from Cleveland society, Henry Mould.  Married at the age of seventeen, she soon had a daughter, Adelaide.  After Mr. Mould's business experienced financial difficulty, Mr. and Mrs. Mould disappeared to Europe.  Mina Stevens Mould studied to be a grand opera singer in Paris under the tutelage of Madame Marchesi.  But, when the family finances became strained, she turned her talent to light opera and made her stage debut in Bath, England, in the operetta, "Falka."11  She appears to have taken as her stage name the title of a French opera, "Manola."12

When Warren and Brandeis wrote about her in 1890, Marion Manola was at the height of her stardom.  Not a conventionally pretty woman, Marion Manola appears in photographs taken in the 1890s to be rather plain.13  She was neither a glamorous, voluptuous woman, such as her contemporary, Lillian Russell, nor a cute, winsome ingenue, such as her co-star Della Fox.  An article from 1888 described her simply as a "young singer."14  In 1890 the New York Times described her as "the little singer and actress."15  She was depicted as "very small" with "fine dark eyes, and a wealth of auburn hair that glistens like burnished copper."16  She had a lively, riveting personality which caused the Dramatic Mirror to rhapsodize, "There is in her face a something more than prettiness, and her slender figure is a graceful relief to the eyes after the numerous over-plump beauties."17  She left the stage in the late 1890s, her health ruined by addiction to morphine.  After the turn of the century, remarried and free of morphine, she returned to the stage as one of the first actresses from the legitimate theater to appear in vaudeville.18  When she died in 1914, her obituary described her as "a famous light opera star of twenty years ago . . . ."19

The comic opera stage which Marion Manola graced in 1890 was a very lively place.  Musical theater in the United States was still in its formative years.  During the late 1870s and 1880s, Gilbert and Sullivan operettas, such as "H.M.S. Pinafore," transformed the musical theater as it moved away from grand opera and began to offer a mixture of operetta, French opera bouffe, comic opera, and musical reviews and extravaganzas, which themselves derived in part from minstrel shows.20  In his history, American Musical Theater, Bordman explains:

 Marion Manola gained fame as a comic opera prima donna23 singing with the McCaull Opera Company.24  Her somewhat stormy relationship with that company both made her famous and set the stage for the events described by Warren and Brandeis. In the spring of 1889, one year before the incident described in the law review article, the New York Times carried a story under the headline, "Marion Manola Pouting: A Speck of War in the M'Caull Opera Company."25  The article described her as so insulted because one of her fellow actors pushed her on stage, that she refused to appear on stage with the offending actor until he apologized for the public insult.  This incident exemplified the temperamental personality for which Marion Manola was widely known.26  The 1889 newspaper article also described her public role as a stage performer as properly set apart from her private life.  The article offered the opinion that Marion Manola should not have refused to perform:  "A lady holding her position has no right to allow her personal grievances to influence her to the detriment of her manager's interests.  Her proper course, . . . was to fulfill her engagement to her manager and the public, and settle her private grievances in private."27  The article also reported the unyielding views of the manager, Benjamin Stevens, that, "[w]hen Miss Manola deliberately absented herself from the theatre he had no alternative but to ignore her until she returned to her duty."28  This same manager, Stevens, was the main defendant in the injunctive action recounted by Warren and Brandeis the next year.

Between this incident in June of 1889 and the photographic altercation a year later, Marion Manola was involved in yet another controversy with the McCaull Opera Company.  A series of newspaper articles recounted at length Marion Manola's efforts to quit the McCaull Company early in 1890, before her contract was scheduled to end in May.  She had already agreed to join the new De Wolf Hopper Opera Bouffe Company later in the spring.29  Moving to the De Wolf Hopper Company was, Marion Manola told the New York Times, "a step much to my advantage in every way--a course which I was bound to pursue."30  Claiming ill health, she left the McCaull Company in Chicago and returned to New York.31  McCaull granted her two week's vacation and served on her "a legal notice . . . that she would be held responsible for damages if she did not return to the company at the expiration of that time."32  The same article reported that, "[t]he threat of a law suit for damages does not seem to trouble the little singer and actress at all."33

Within weeks, a New York court had granted Col. McCaull an injunction against Marion Manola to restrain her from singing with another opera company during the spring of 1890.34  Manola, who was at the time living as a single mother, pleaded concern about her "little daughter, Adelaide," a beautiful nine-year-old child.35  The judge found that Manola's claim that "the support of herself and her child would be endangered by the injunction" was without foundation, as the "plaintiff [McCaull] is willing and anxious for her to complete her engagement at $150 per week, and it will be her own fault if she finds herself without support."36  This incident gave Marion Manola some experience with the power and process of the courts.  Later, when she brought the suit described by Warren and Brandeis, she knew just the lawyer to hire, the same A. H. Hummell37 who had secured the injunction against her for Col. McCaull.

 The injunctive action Warren and Brandeis described occurred five months later, a few weeks after the opening of the De Wolf Hopper Company's first production, "Castles in the Air."38 The uninspired libretto by C.A. Byrne revolved around the perils of a young man, Bul-Bul (the part played by Marion Manola), who was both deeply in debt and deeply in love with Blanche. Cabolastro was both the potential source of a disguise which would allow Bul-Bul to escape his creditors and Blanche's father.  Cabolastro agreed to provide the disguise if Bul-Bul could out-talk Cabolastro's garrulous wife.  Bul-Bul's success, both in the war of words and in wooing Blanche, was rewarded by his prospective father-in-law's paying off the young man's debts.39  However, the plot of the comic opera was not why audiences came to see the De Wolf Hopper Company's new production.  They came to see and hear the stars. The role played by the company's leading male star, De Wolf Hopper, was not even related to the plot.  Hopper drifted on and off the stage throughout the evening as a freethinking judge, Filacoudre, who pantomimed, clowned, sang, and otherwise "stole the thunder from all other performers."40  Such was the rather zany context out of which Marion Manola's lawsuit arose.  It was a lawsuit in which privacy interests confronted the development of advertising and the invention of photography.

The particular object of Marion Manola's legal complaint was not the comedic chaos of the De Wolf Hopper Opera Company's production, but what appears to have been an advertising stunt staged by the manager, Stevens, to bolster faltering attendance at the show.  This theater manager was the same Benjamin Stevens, with whom Marion Manola had tangled in court before.41  The initial report of the photography incident in the New York Times was headlined, "Photographed in Tights: Marion Manola Caught on the Stage by a Camera."42  The story noted:

The 1890s were, after all, what Henry James called "the age of advertising."47  It was a time when Phineas T. Barnum, "the first great advertising genius and the greatest publicity exploiter the world has ever known,"48 enthralled the American public.  Barnum's autobiography, Struggles and Triumphs, "sold more copies in the nineteenth century than any book except the Holy Bible."49  According to Barnum, the aim of advertising was "to extort attention."50  He proclaimed a grandiose role for advertising as itself a kind of show business.51  When the theater manager, Stevens, staged his ostentatious event at the expense of Marion Manola, he was simply acting as a late nineteenth century entrepreneur promoting his theatrical production by flamboyant advertising.52

The 1890s were also a time when photography had just become more convenient and widely available.  Photographers, such as Jacob Riis and Alfred Steiglitz, were beginning to take candid photographs around New York with improved photographic equipment.53  Daniel Boorstin has described the social significance of these late nineteenth century technological developments in photography as enormous, because they made experience repeatable in unanticipated ways:

Apparently, Marion Manola did not want to have her appearance on the stage in "Castles in the Air" repeated by means of a candid photograph.  She also, undoubtedly, did not appreciate having her performance interrupted and upstaged by a theater manager's advertising gimmick.  According to the New York Times, "[w]hen Miss Manola realized what had been done she threw her mantle over her face and ran off the stage.  She returned, however, to finish her performance."57  Her next move was to go to court to obtain an injunction against use of the surreptitiously taken flash-light photograph.  By the end of the week, she had secured "an injunction against the display of photographs of the actress in this style of stage costume."58  The fact that no one appeared in opposition is a further indication that the real reason for taking the photograph was the manager's desire not so much for photographs as for the publicity which the stunt successfully generated.  Marion Manola brought suit to enjoin use of the photograph because she did not choose to have her image used for advertising purposes in that form.

Marion Manola had many reasons for objecting to the use of the photograph.  First, she was a trained singer who had studied grand opera.  Her voice and her acting ability constituted her professional identity, not her legs.  Moreover, Marion Manola may have been uncomfortable in this particular Atrouser role,@ or in trouser roles in general.59  It is also possible that the twenty-four year old single mother experienced gender anxiety in the role of the young man, Bul-Bul.60 Most of all, she was apparently concerned about here image in the eyes of her nine-year-old daughter.

According to the first of the New York Times articles, "[i]t is alleged that Miss Manola refused to be photographed in tights owing to her modesty."61  However, modesty does not quite capture the reason Marion Manola gave for refusing to allow her image in tights to be used in advertising the comic opera.  The Illustrated American offered a more detailed explanation:

Marion Manola had not been shy about exposing her legs to public view.  She did not object to performing in tights on stage, and even posed for a series of charming studio portraits in such costume.63  There was nothing unusual about a prima donna appearing on the comic operatic stage in tights in 1890.64  Writing about the American musical theater of the early 1890s, Bordman notes, "acrobatic clowns and prima donnas dominated the musical stage of the period.  The clowns were almost always in grotesque make-up and the prima donnas as often as not in tights, both thereby underscoring the  traditions out of which they came."65  What Marion Manola objected to was the use of her picture in tights to advertise the comic opera in which she was appearing.  She was determined to control the use of her image and identity in ways that might interfere with her relationship with her convent-educated daughter.  Having said that she would not allow such advertising use of her identity, she felt that she had a legal right to enforce that refusal.66

Marion Manola's success in getting a court to enforce her right to control the exploitation of her personality obviously intrigued Warren and Brandeis. Their description of her "somewhat notorious case"67 is curious in a number of ways.  To begin with, what Marion Manola succeeded in protecting was not very private.  She was, after all, a performer singing and acting on the New York stage, where anyone who bought a ticket could come and see her.  In addition, Warren and Brandeis did not have much of a case report about which to write.  Marion Manola's lawsuit ended with an ex parte default ruling by an "inferior tribunal."68  No official report of the decision appears in any published report of judicial decisions.69  Moreover, Warren and Brandeis described Marion Manola's story with a liveliness unusual for a late nineteenth-century law review article.  It seems that Marion Manola's story was one they simply could not resist telling.

For lawyers of this century, Marion Manola's story is of primary interest as an example of legal doctrine.  The legal doctrine her case illustrates is a frequently overlooked part of Warren=s and Brandeis' argument for recognition of the right to privacy.  The article's more revolutionary suggestion that the right to privacy provides a legal basis for vindicating feelings and providing redress for emotional injuries has, over the past hundred years, overshadowed this proprietary aspect of the original concept of the right to privacy.  The express reason Warren and Brandeis gave for telling the Marion Manola story was to provide an illustration of a judicial decision which "directly involved the . . . right of circulating portraits."70  In discussing this aspect of the right to privacy, Warren and Brandeis presented it as part of mainstream legal doctrine which protected intangible property rights.  But they argued that these intangible property rights should be seen as part of a larger category of legal right, the right to privacy:  "[L]egal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property are, it is believed, but instances and applications of a general right to privacy . . . ."71  The proprietary "principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality."72

 At the beginning of the law review article, Warren and Brandeis suggested a hierarchical relationship between privacy and property in which intellectual property was presented as a subcategory of the more general principle of the right to privacy.  Later in the article, when they sought to highlight the distinct nature of the more novel emotional-injury aspect of the right to privacy, they sharply distinguished this emotional aspect of the right to privacy from the right to property.  When later discussing rights to prevent the use of surreptitiously taken photographs, they described a close relationship between property and privacy:  "The right of property in its widest sense, including all possession, including all rights and privileges, and hence embracing the right to an inviolate personality, affords alone that broad basis" for protecting an individual's right to prevent use of photographs taken without that individual's consent.73  They had earlier outlined this right to prevent use of unconsented photographs, in connection with Marion Manola's case, as an instance of the proprietary aspect of the right to privacy.

The symbiotic relationship between this proprietary aspect of the right to privacy and the other emotional aspect of the right to privacy was, for Warren and Brandeis, quite close indeed.  An important premise of their argument for protecting the right to privacy was the notion that one owned one's self, one's ideas and one's self-image, as a property right worthy of legal protection.  They argued that the personal right to psychological integrity similarly should be worthy of legal protection against injuries to one's feelings and self-image.  These aspects were two sides, having different practical results, of the legal recognition of the right to "inviolate personality."74  One side of the right to privacy had to do with proprietary rights.  The other side had to do with emotional integrity.  These two aspects were encompassed by a single general principle, the right to privacy.75  Marion Manola's case served as an illustration of Warren=s and Brandeis' premise that the law of intellectual property already recognized and protected certain proprietary aspects of this complex right to privacy.  Most of the rest of their article was devoted to arguing that the emotional or psychological aspects of personality deserved direct legal protection as well. To emphasize that their concept of the right to privacy embraced the property rights of celebrated personalities to control the uses of their identities in advertising, Warren and Brandeis pointed out that a New York court had already determined that Marion Manola had the right to prevent exploitation of her "inviolate personality."76  Indeed, the comic opera prima donna's personality was her most valuable asset.

Warren and Brandeis were also interested in taking a deeper look into the reasons why the law should protect such property rights in an individual's identity.  They suggested that the reason why the law enforced Marion Manola's right to prevent the use of her image in advertising without her consent was because such a right was an attribute of her intrinsically valuable human personality.  Although Manola's case exemplified the proprietary side of the right to privacy, contemporaries of Warren and Brandeis would have known that the temperamental prima donna's legal action must have primarily reflected her notorious emotional side.  After all, at the time Warren and Brandeis wrote about her case, Marion Manola was as famous for her sensitive temperament as she was for her brilliant soprano voice.

III.  MIDLER V. FORD MOTOR CO.77

 A century later, another singer-actress-entertainer, Bette Midler, was also outraged at the way her identity had been taken and used without her consent.  Like Marion Manola, Bette Midler went to court.  However, what Bette Midler sought to protect was the embodiment of her identity in the sound of her voice, rather than her visual image.  Midler's lawsuit targeted an advertising agency (Young & Rubicam) and an automobile company (Ford Motor Company). Midler complained that, after she had turned down Young & Rubicam's request that she sing for a television commercial advertising Ford Motor Company's Mercury Sable automobile, the advertisers hired one of Bette Midler's former back-up singers, Ula Hedwig, to imitate the sound of Midler's hit record of "Do You Want to Dance" for the commercial.78

The rights which Bette Midler sought to vindicate were very particular.  She did not claim to own the song "Do You Want to Dance."79  Nor did Midler contend that a recording of her own voice appeared in the television commercial.80  What Bette Midler did complain about was what the Ninth Circuit ultimately described as "pirat[ing] her identity"81 by the advertisement's use of what was intended to, and did in fact, sound exactly like the popular recording of her voice to attract attention and to generate good feelings about the automobile shown in the television commercial.  Bette Midler was also concerned that the advertisers had done this despite her express refusal to agree to sing for the commercial.  The Ninth Circuit agreed:  "At issue in this case is only the protection of Midler's voice.  The district court described the defendants' conduct as that 'of the average thief.'  They decided, 'If we can't buy it, we'll take it."'82

In reversing the district court's summary judgment ruling for defendants, the Ninth Circuit held that Bette Midler could recover damages in tort based on a common law theory "that the defendants here for their own profit in selling their product did appropriate part of her identity."83  The Ninth Circuit's opinion, written by Judge Noonan, never described the appropriation of Bette Midler's identity as a violation of her right to privacy.  However, the theory of liability which allowed Bette Midler to recover damages appears to be remarkably similar to that which Warren and Brandeis had described as the theoretical basis for Marion Manola's injunction.  "What is put forward as protectible here is more personal than any work of authorship," wrote Judge Noonan for the Ninth Circuit in 1988.84  Almost a hundred years earlier, in 1890, Warren and Brandeis had explored a new theory which would justify just such a protectable interest in connection with that other celebrated Miss M, Marion Manola.

In understanding the theory of liability recognized by the Ninth Circuit in Midler, it helps to know something about the plaintiff.  Bette Midler is the inventor of the Divine Miss M persona.85  Recently awarded a Grammy for best record of the year,86 Bette Midler has published two books,87 and has been the willing subject of numerous interviews.88  She has hardly been shy about promoting herself.89  She was born and raised in a family of modest means in Hawaii, was the valedictorian of her high school class, and at present lives with her husband and daughter in the hills above Hollywood.  When she has a new movie or record release, she willingly courts media attention.  Outside of her public life, however, she enjoys a certain quiet and unrecognized anonymity.  She sometimes enjoys pretending to be a librarian, a career she might have chosen had she not become a singer and movie actress.90

 Feature articles about Bette Midler have typically mentioned her diminutive stature and contrasted her physical smallness with the larger-than-life, magnetic energy which rivets attention on her when she performs.  Like Marion Manola, Bette Midler has become famous, not as a conventional beauty, but rather as an electric performer of great charisma.  Writing for the Rolling Stone in 1979, Timothy White described having lunch with Bette Midler at the Algonquin Hotel in New York:  "[T]here is little outward indication of the great charisma and convulsive energy she exhibits when she steps before the footlights.  She is diminutive (five feet one) and deceptively frail looking."91 At the same time, her performances as "the world's top singer-dancer-comedian-songwriter-actress-author-survivor-thriver-dynamo-di vinity"92 have tended to be larger than life. Midler has joyfully embraced fame and stardom and, at the same time, appears to take pleasure in being able to move unrecognized through the everyday world when she is not performing.  So there she is, a complex, even a bit contradictory, personality: an outrageous performer who enjoys no-holds-barred, publicity-seeking raw exhibitionism, who is also a private person of intelligence and sensibility.  The public knows quite a lot about the private life and personality of Bette Midler, who willingly discusses with reporters her need "for the great love of an audience,"93 just as a century earlier Marion Manola's fans had followed in the newspapers Miss Manola's rather different story of multiple marriages and divorces, of a close relationship with her daughter, and even of Marion Manola=s recovery from drug-addiction.

Bette Midler's sense of her own unique individuality is legendary.  She has explained that she was named after Bette (pronounced as "Betty") Davis, but has preferred to assert her own strong identity as Bette (sounds like "bet") Midler, the Divine Miss M.94  In her 1983 children's book, The Saga of Baby Divine, Bette Midler described a redheaded Baby Divine born wearing red high-heeled shoes and already calling out, "MORE!"95  When Baby Divine philosophized in verse about what it meant to be a "minuscule human," she declared:

Unlike Marion Manola, Bette Midler appears to be considerably less temperamental and thin-skinned than the comic opera prima donna of the previous century.  But Bette Midler, like Marion Manola before her, has apparently been involved in her share of litigation.97  For example, she was reportedly sued for $3 million for breach of contract by her Harlettes.98  One of the plaintiffs in that action was the same Ula Hedwig who imitated Midler's voice in the Ford Motor Company television commercial. According to an unauthorized biography, Bette Midler was even sued by the costume designer who created the famous mermaid costume in which Midler appears on the covers of her Divine Madness album and of her book, A View from A Broad.99  Curiously, the only officially reported litigation involving Midler, before her suit against the Ford Motor Company, was a lawsuit brought, not by Midler, but by the copyright holder of "Boogie Woogie Bugle Boy," which was one of the songs in her popular 1973 act and album, "The Divine Miss M."100

 The "Boogie Woogie Bugle Boy" case provides an illuminating contrast to Midler v. Ford Motor Company.  The "Boogie Woogie Bugle Boy" litigation concerned copyright infringement by a raunchy musical review which had used the song with different words and a different title.  Bette Midler was not a litigant, although her rendition of the song is discussed extensively by the court.101  She knew the defendants, one of whom, Billy Cunningham, had helped give Midler her start as a solo performer by playing piano for her first appearance at the Continental Baths in New York.102  The defendants admitted that they had listened to Bette Midler's rendition of the song (which itself was a fairly close imitation of the Andrews Sisters' 1940s recording103) in coming up with their own suggestive version.  The "Boogie Woogie Bugle Boy" case is interesting for several reasons.  First, Bette Midler did not bring suit against the defendants who were using one of the songs associated with her, but not replicating the sound of her voice to advertise consumer products.  Second, the case illustrates Midler's own frequent imitation of other singers' styles and her use of materials which had been performed by other artists.104

This borrowing of material and imitation of vocal styles and sounds is precisely the type of activity which was not the focus of Bette Midler's legal action against Young & Rubicam and the Ford Motor Company.  The focus of her lawsuit was the defendants' deliberate use of her identity as embodied in the recorded sound of her voice, not only without her consent, but after she had expressly turned down the advertisers' request for her to sing.  When the advertising agency called to ask her to sing for the commercial, they seemingly recognized that there was commercial advertising value in her identity as reflected in the distinctive sound of her voice.  In suing the advertisers, Midler was not trying to prevent other singers from doing take-offs on her style of singing.  She just did not want to have her personality, as embodied in the distinctive sound of her voice, used to sell automobiles.  The Ninth Circuit held that she had such a right and that it was a property right.105  The legal basis for her recovery of damages was remarkably similar to the proprietary aspect of the right to privacy which Warren and Brandeis, a century earlier, had described as the right vindicated by Marion Manola.  Listen closely to the Midler opinion's choice of words in ruling that "a celebrated chanteuse"106 was entitled to legal protection for a right "more personal than any work of authorship"107 from "exploitation without her consent."108  In the distant background, there is an unmistakable echo of Warren=s and Brandeis' argument for the right of privacy. The shadowy presence of Marion Manola almost comes into view.  Of course, neither Warren and Brandeis, nor the right to privacy, nor Marion Manola is directly mentioned in the Ninth Circuit's opinion.

In her first appeal, Midler's briefs to the Ninth Circuit did present a privacy claim, although no citation to Warren and Brandeis appears.109  Midler's second argument on appeal was: "Defendant's use of a sound-alike to imitate Midler's voice in a television commercial constitutes commercial appropriation under common law . . . rights of privacy."110  Her opening brief explained that "appropriation of personality under a pure privacy theory [involves] injury to feelings."111  In a later section, her brief urged:

Midler's opening brief presented her property interests, which the Ninth Circuit ultimately held provided a viable basis for a common law cause of action, under a right of publicity theory.115  Her reply brief discussed both "Common Law Rights of Privacy and Publicity" in a single section.116  The reply brief argued:

The defendants' brief also argued this aspect of the case in terms of privacy and publicity rights, rather than property.  Their brief asserted:  "Plaintiff does not have a viable claim under . . . invasion of privacy or invasion of the right of publicity."119  This section of the defendants' brief began by pointing out that "[u]nder California law, no real distinction is made between the interests protected by the right of publicity and those protected by the appropriation branch of the right of privacy."120  Noting that the "debate over whether the right to control exploitation of one's name or likeness sounds in tort or property is 'pointless,"'121 the defendants' brief argued that neither right was involved in the Midler case.  Since "there is nothing in the Sable commercial to suggest that plaintiff is in any way connected with the commercial,"122 and "[d]efendants did not use plaintiff's [actual] voice in the Sable commercial,"123 the defendants asserted that there was no privacy or publicity theory of liability available to Midler.124

The Ninth Circuit did not adopt the arguments presented in any of the briefs.  Rather, the court described a different theory of liability, which is in some ways similar to the proprietary aspect of the right of privacy which Warren and Brandeis had described in connection with the Marion Manola case. The Ninth Circuit opinion is remarkably succinct.  After describing the factual context, with emphasis on the deliberateness of the defendants' conduct, the court placed its ruling outside the purview of both first amendment protection and federal copyright law:  "A voice is not copyrightable.  The sounds are not 'fixed.'  What is put forward as protectible here is more personal than any work of authorship."125  Moreover, the opinion makes clear that the theory of liability which the court recognized was not based on common law privacy rights, nor on statutory rights under California Civil Code Section 3344,126 which provides for general damages when a person has been injured by unconsented use of that individual's "name, voice, signature, photograph or likeness in any manner."127

 The Ninth Circuit's opinion did, however, refer to Civil Code Section 3344 as implicit legislative recognition of common law property rights to an individual's identity in addition to those provided by the statute.  Since the final subsection of Section 3344 notes that, "[t]he remedies provided for in this section are cumulative and shall be in addition to any others provided for by law,"128  California law must protect some additional common law rights not covered in the statute.  Among these common law rights were property rights similar to those described in another statute, Civil Code Section 990.129 The California legislature enacted Civil Code Section 990 after a California Supreme Court decision that the rights under Section 3344 were personal and could not pass to the heirs of deceased personalities.130  This additional Civil Code section was designed to protect what the statute explicitly describes as descendible "property rights" in the identities of deceased personalities.131  Reasoning by analogy to Section 990, the Ninth Circuit logically concluded that similar property rights must exist for living people, like Bette Midler.132  The final subsection of Section 3344 had explicitly left room for such common law property rights.  Therefore, the opinion concluded, "[a]ppropriation of such common law [property] rights is a tort in California."133

The key precedent for this ruling was a Ninth Circuit case decided on the basis of California law as it existed before either Civil Code Section 3344 or Civil Code Section 990 had been enacted. The case, Motschenbacher v. R.J. Reynolds Tobacco Co.,134 was extensively briefed by both parties in the Midler appeal. In Motschenbacher, the Ninth Circuit had recognized tort liability for interference with a "proprietary interest"135 injured by "an appropriation of the attributes of one's identity."136  Motschenbacher involved an altered photograph of a famous race car driver's car.  The driver was in the car, but not recognizable.137  Nevertheless, the Midler opinion described Motschenbacher as having been "physically used" in the television commercial.138  Midler's identity was not used in such a physical way, but, the court concluded, she was nevertheless subjected to a similar "injury from 'an appropriation of the attributes of one's identity."'139

Perhaps the most interesting aspect of the opinion is the way it artfully evoked Midler's property right in her celebrated identity. The court's explanation began by asking a series of rhetorical questions:  "Why did the defendants ask Midler to sing if her voice was not of value to them?  Why did they studiously acquire the services of a sound-alike and instruct her to imitate Midler if Midler's voice was not of value to them?"140  The court immediately answered its own questions:  "What they sought was an attribute of Midler's identity.  Its value was what the market would have paid for Midler to have sung the commercial in person."141  Since Bette Midler's identity, as embodied in the sound of her voice, was treated as having value by the defendants, the court reasoned that the defendants should not be allowed to deny her valuable property right in it.  Moreover, the court pointed out, the legislature of the State of California had recognized just such a property right in identity when the legislature enacted Civil Code Section 990.

To establish that the sound of Midler's singing voice constituted an element of her identity,142 in the same way the appearance of Motschenbacher's car was an element of his identity, the Ninth Circuit relied on insights from a remarkable book of philosophy, Listening and Voice:  A Phenomenology of Sound by Don Ihde.143  The Midler opinion briefly quoted from a section of the book which discussed auditory fields and auras:

Neither party cited the Ihde work in the briefs on appeal. Rather, Midler's argument regarding the embodiment of her identity in the sound of her voice relied on testimony, such as the declarations quoted in her reply brief.  For example, Ken Fritz, a personal manager in the entertainment business, stated, "When I saw this commercial I thought Bette Midler was doing the singing on the commercial.  To me, it sounded like Bette Midler."146  Ula Hedwig, Midler's former back-up singer who sang in the commercial, described her task of imitating "Bette Midler's voice as closely as possible . . . .  Bette Midler's singing voice is very distinctive, and I believe that I was able to imitate her in the recording for the television commercial due to the many years I have worked as a Harlette."147

Focusing on the deliberateness of the defendants' conduct in seeking to acquire the value of the sound of Bette Midler's voice for their television commercial, the Ninth Circuit seemed to hoist the defendants on their own petards:  "[W]hen 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."148  The court was convinced that the defendants got just what they wanted.  Since they took what they wanted, despite Midler's refusal to sell it and without paying for it, the defendants committed a tort.  They lifted the value of her identity, almost as if they had stolen her purse.  Such a theory of liability for purloining a famous person's identity is reminiscent of the explanation Warren and Brandeis gave for the legal vindication Marion Manola secured.

IV.  BETWEEN THE TWO MISS MS

Almost a hundred years separate the stories of the two Miss Ms.  There are also numerous differences between the legal rights discussed by Warren and Brandeis in connection with Marion Manola and those recognized by the Ninth Circuit in approving Bette Midler's cause of action.  Three of these differences in legal doctrine are particularly interesting:  the nature of the rationale, the structure of the legal doctrine and the type of remedy.

In the first place, unlike the Midler decision's detailed rationale, the legal doctrine behind Marion Manola's case was not provided by the court which ruled in Marion Manola's favor.  The explanation was supplied by Warren and Brandeis.  As noted earlier, there is no published judicial opinion in Marion Manola's case.  The New York court simply granted, ex parte, the injunctive relief the comic opera prima donna had requested.  So far as anyone knows, the court gave no reasons for ruling in her favor.  Warren and Brandeis were the ones who suggested a rationale for this ruling when they discussed the case in their law review article.  They explained the court's grant of an injunction against the use of photographs taken without Manola's consent as designed to protect her proprietary right not to have her picture used without her consent.  They presented this right as part of the right to an "inviolate personality,"149 which involved psychological and emotional interests as well.150  In contrast, the Ninth Circuit's published opinion provides the court's own logical rationale, discussed above, for recognizing Bette Midler's right to recover the fair market value of the use of the sound of her voice.

 A second difference between the legal rights asserted by the two Miss Ms is structural.  The Ninth Circuit's discussion of Midler's property right in her identity is unconnected with other types of rights or injuries.  Unlike the Warren and Brandeis essay which interrelates proprietary with emotional rights, the opinion in Midler rests the court's decision on a free-standing property right unconnected to any overarching right to privacy, or principle of "inviolate personality," which might also protect against injuries to Midler's feelings.  The Ninth Circuit's rationale is really not directly concerned with Bette Midler's feelings at all. This separation of property rights in a person's identity from privacy rights against emotional injuries is structurally quite different from Warren=s and Brandeis' approach which connects these rights under the broader rubric of a right to privacy.

This separation of property rights in identity is a distinctive feature of California law regarding publicity/privacy rights.  The reasons for the split between privacy and property rights in California law are partly historical.  The tort right of privacy came into California law in 1931, in the Court of Appeal's decision in Melvin v. Reid.151  Melvin involved the motion picture, "The Red Kimono," which used the name and life story of a reformed prostitute who had been acquitted of murder seven years earlier.  Relying on article I, section 1 of the California constitution, which at that time guaranteed "certain inalienable rights, among which are those of . . . pursuing and obtaining . . . happiness,"152 the court approved Mrs. Melvin's right of privacy cause of action.  In this cause of action, Mrs. Melvin complained of "grievous mental and physical suffering to her damage in the sum of fifty thousand dollars."153  Holding that such a privacy right was "an incident of the person and not of property,"154 the court of appeal expressly rejected all three of Mrs. Melvin's other causes of action based on property claims to her name and life story.155  Thus, this first recognition of a cause of action under California law for invasion of privacy specifically rejected proprietary aspects of privacy such as those Warren and Brandeis had discussed in connection with Marion Manola's case.

However, rejection of property rights in a person's identity in Melvin v. Reid does not mean that the property right recognized in Midler is in any sense illegitimate.  California law changed a great deal during the fifty years between Melvin and Midler.  A 1955 Court of Appeal decision recognized a common law cause of action for use of an attorney's name in an advertisement for photocopiers,156 although the court held that the actionable injury was to the lawyer's subjective feelings, mental peace and happiness.  Enactment of Civil Code Section 3344 in 1971 established a statutory cause of action for intentional commercial use of a person's name or likeness and provided minimum damages of $300.157  In 1984, further legislation amended Section 3344 and adopted a new section, Civil Code Section 990. Civil Code Section 990 characterized the rights it protected as "property rights," so that they would continue to exist as a basis for legal action after the death of the individual whose identity was protected under the statute.  These property rights were similar to those discussed by Warren and Brandeis in connection with Marion Manola's case.

California's statutory property rights, and the parallel common law right recognized in Midler, are, however, conceptually quite different from Warren's and Brandeis' notion of proprietary privacy rights integrally related to a larger legal principle.  It was this larger principle, called the right to privacy, which was Warren's and Brandeis' main concern in their article.  In contrast, the property rights in personal identity recognized in Midler, and in Civil Code Section 990, exist independently of any such general right to privacy.  Since no overarching privacy principle explicitly intertwines both proprietary and emotional aspects of the right to privacy in California decisional law and legislation, none is discussed in the Midler opinion.

 A third difference between the legal rights asserted by the two Miss Ms relates to the nature of the remedy.  Consonant with the Ninth Circuit's recognition of a free-standing property right in Bette Midler's identity, the remedy suggested in Midler is restitutionary.  This remedy was designed to restore to Midler the value of what the advertisers had taken from her, as well as to extract from them the unjust enrichment they received from using her identity.  Such a damage remedy is very different from the injunctive remedy Marion Manola sought and secured.  Marion Manola did not seek payment for the use of her picture to advertise the comic opera in which she was appearing. She sought and secured control over the use of her image.  The injury Marion Manola sought to prevent was not pecuniary but rather an injury to her feelings--her outrage at the way she had been treated and her desire to preserve her image in the eyes of her daughter.

In contrast, the remedial aspects of the Midler opinion are not concerned with vindicating injuries to Bette Midler's feelings, her emotional well-being or her sense of self-control.  The Ninth Circuit's theory of liability is solely concerned with restoring to Bette Midler what an advertising agency would have had to have paid to persuade her to sing background for its automobile commercial.  The remedy therefore simply required payment for what had been taken.  The jury instructions in the trial which followed the Ninth Circuit's decision described this remedial doctrine as follows:

  When the distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the singer's rights have been violated.  In such a case, the singer is entitled to the fair market value of what was taken.

  Thus, the only questions you must decide are: (1)  Whether Young & Rubicam deliberately imitated Bette Midler's voice in producing Ford Motor Co.'s Sable automobile television commercial.  If the answer to the first question is "Yes," then, (2)  [you must decide] the fair market value of Bette Midler's voice.

  Most of you are familiar with the term "copyright." Copyright law protects authors of original works, such as the song Do You Want To Dance?.  There are no issues of copyright law, as such, for you to decide in this case. However, in deciding whether or not Young & Rubicam deliberately imitated Bette Midler's voice, you must keep in mind that Y&R had the right to use the song.  You must also keep in mind that the mere imitation of a performance contained in a recording is not a violation of the copyright law.  Thus, the issue is whether or not Bette Midler's voice was deliberately imitated.158

The evidence presented to the jury with regard to the fair market value of Bette Midler's voice covered a wide range from about $45,000 to over $1 million.  In the end, it appears that the jury compromised with a verdict of $400,000 in compensatory damages for the television commercial's use of a deliberate imitation of Midler's voice recorded on her hit record.  The jury verdict seems somewhat quixotic, since it is supposed to represent what the advertising agency would have had to pay Bette Midler to sing background music for the automobile commercial, despite the fact that she had refused to sing for this or any other commercial.159