Johnny Cash Estate Sues Coca-Cola over Soundalike Ad
Billboard reports that the estate of Johnny Cash has sued Coca-Cola for using a soundalike singer in an ad that plays between college football games as part of its “Fan Work Is Thirsty Work” campaign.
The singer in the ad is Shawn Barker, a professional Cash impersonator.
According to Rolling Stone,
While the Cash estate does license the late performer’s intellectual property — such as his songs “Ragged Old Flag” and “Personal Jesus,” which were used in Super Bowl telecasts — the estate claims Coca-Cola “never even bothered to ask the trust for a license” in the case of this ad…
According to the complaint,
This case arises from Coca-Cola’s pirating of Johnny Cash’s voice in a nationwide advertising campaign to enrich itself, without asking for permission or providing any compensation to the humble man and artist who created the goodwill from which Coca-Cola now profits.
This appears to be the first case brought under Tennessee's new ELVIS Act, which explicitly added protection for voices to the state's right of publicity.
We previously blogged about this in 2024, when Illinois enacted a law amending the state’s Right of Publicity Act to create a private right of action to sue those who create or distribute unauthorized uses of a person’s identity generated by artificial intelligence (AI).
As we explained then, Tennessee passed the first US law against the use of artificial intelligence (AI) to copy a person’s voice. The law, called the Ensuring Likeness, Voice, and Image Security (ELVIS) Act, took effect in July 2024.
The state’s prior right of publicity law only protected a person’s name, image, and likeness. The new Act added protection for a person’s voice.
Under the Act,
"Voice" means a sound in a medium that is readily identifiable and attributable to a particular individual, regardless of whether the sound contains the actual voice or a simulation of the voice of the individual…
Also,
Any person who knowingly uses or infringes upon the use of an individual's name, photograph, voice, or likeness in any medium, in any manner directed to any person other than such individual, for purposes of advertising products, merchandise, goods, or services, or for purposes of fundraising, solicitation of donations, purchases of products, merchandise, goods, or services, without such individual's prior consent, or, in the case of a minor, the prior consent of such minor's parent or legal guardian, or in the case of a deceased individual, the permission of the executor or administrator, heirs, or devisees of such deceased individual, is liable to a civil action.
Although the ELVIS Act covers AI voice replicas, it also applies to human “soundalikes.”
As The Guardian explains, the Cash estate is seeking an injunction to remove the Coca-Cola ad from the air, damages under the Elvis Act, and damages for alleged violations of consumer protection laws in Tennessee.
The complaint in the Cash case cites Midler v. Ford Motor Co., 849 F.2d 460, 463 (9th Cir. 1988), a case involving a Bette Midler soundalike ad.
As the University of Miami Entertainment & Sports Law Review explained,
In 1985, Young and Rubicam (Y&R) launched a successful advertising campaign for the Ford Motor Company's new Mercury Sable. Referred to as "The Yuppie Campaign," Y&R produced nineteen television commercials aimed at the "thirtysomething" audience.' These commercials were designed to provoke a bit of nostalgia in viewers by using popular music of the 1960's and 1970's, music that this target audience had listened to while in college.
Y&R acquired a copyright license for the song “Do You Want to Dance?” for $45,000. Various artists, including Midler, had recorded versions of the song.
In ten of the nineteen commercials it produced, the ad agency was unable to retain the original performers who popularized the songs, so it had the songs sung by sound-alikes.
Y&R tried to obtain the rights to the Midler version, but, consistent with Midler's policy of never authorizing the use of her name, likeness, or music for any commercial endorsements in the United States, Midler's agent declined the offer.
So Y&R hired Ula Hedwig, a singer in Midler's former backup group, The Harlettes. Hedwig was directed to "sound as much as possible like the Bette Midler record."
Midler sued both Ford and Y&R for $10 million.
The court said in the Midler case that
A voice is as distinctive and personal as a face. The human voice is one of the most palpable ways identity is manifested. We are all aware that a friend is at once known by a few words on the phone. At a philosophical level, it has been observed that with the sound of a voice, ‘the other stands before me.’ A fortiori, these observations hold true of singing, especially singing by a singer of renown. The singer manifests herself in the song. To impersonate her voice is to pirate her identity.
The 9th Circuit concluded that
[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.
On remand, the trial judge instructed the jury as follows:
In deciding whether or not Young and Rubicam deliberately imitated Bette Midler's voice, you must keep in mind that Y&R had the right to use the song ... [and] that 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.
The jury found in favor of Midler and awarded $400,000 in damages, finding that Bette Midler's vocal quality and singing style were entitled to the same protection as her image.
Following the Midler case, other soundalike lawsuits were brought. As the University of Miami Entertainment & Sports Law Review noted,
Tom Waits sued the Frito-Lay Corporation and the Dallas advertising agency of Tracy-Locke in federal district court seeking $2.3 million in compensatory damages. Waits claimed that a radio spot that ran in September 1988 for Doritos Salsa Rio flavored tortilla chips imitated his distinctive gravelly voice and his blues-enhanced singing style.
The jury awarded Waits $2.475 million, including punitive damages.
