# Booth v. Colgate-Palmolive: New York's Refusal to Protect a Voice Alone

> A Southern District of New York court held that imitating an actress's famous voice (without using her name or likeness) was not unfair competition, defamation, or a Lanham Act violation.

Topic: Right of Publicity  |  Author: Lidiia Levitska  |  Source: Intellectual Property Law (outsideipcounsel.com)
Canonical: https://outsideipcounsel.com/blog/booth-v-colgate-palmolive-voice-imitation-new-york/


*Booth v. Colgate-Palmolive Co.*, 362 F. Supp. 343 (S.D.N.Y. 1973) (No. 71 Civ. 932), is the restrictive bookend to the American voice-imitation cases. Shirley Booth (the stage and screen actress who won an Academy Award for *Come Back, Little Sheba* and became a household name as the title character of the television series *Hazel*) alleged that Colgate-Palmolive and its advertising agency, Ted Bates & Co., had used an imitation of her distinctive voice in commercials for the detergent "Burst." The commercials used the Hazel cartoon character under a written license from its creator and copyright holder, Ted Key; the voice was performed by another actress, Ruth Holden, and neither Holden nor Booth was named or identified. Booth sought $4,000,000 and brought claims for unfair competition, defamation, and violation of the Lanham Act. Applying New York law, the Southern District of New York granted the defendants summary judgment on every theory, holding that the mere imitation of a performer's voice (absent use of her name, likeness, or some additional misrepresentation) is not actionable. Decided eleven years after the First Circuit allowed Bert Lahr's claim to proceed, *Booth* shows how sharply the protection of a voice can vary from one state to another.

## At a glance

- **Case:** *Booth v. Colgate-Palmolive Co.*, 362 F. Supp. 343 (S.D.N.Y. 1973) (No. 71 Civ. 932)
- **Court:** U.S. District Court for the Southern District of New York, applying New York law
- **Posture:** Defendants' motion for summary judgment granted; complaint dismissed (Bonsal, J., Aug. 6, 1973)
- **Holding:** Imitating a performer's voice, without using her name or likeness or creating an affirmative misrepresentation, does not state a claim for unfair competition, defamation, or false designation of origin under the Lanham Act
- **Significance:** The narrowest of the early voice cases; it applies the *Sears*/*Compco* free-imitation policy to a performer's voice and refuses to recognize a common-law right against imitation alone

## The claims and the court's disposition

Booth's grievance was intuitive: she had built a recognizable vocal persona, the commercials traded on it, and she had neither consented nor been paid. But intuition met a body of law that was wary of common-law theories restraining imitation, and a set of Supreme Court decisions holding that states may not forbid the copying of what federal law leaves free.

On **unfair competition**, the court held that imitation of a voice, standing alone, is not enough. New York unfair-competition law, the court reasoned, required something more: the use of the plaintiff's name or likeness, or her voice functioning as a trademark, or some affirmative act passing the defendant's product off as the plaintiff's. Booth's voice had not been used in connection with any goods or services of hers, her voice did not function as a trademark, and the defendants held a license to the Hazel character itself, while "Burst" had been a registered Colgate trademark since 1956. The court's principal authority was federal: *Sears, Roebuck & Co. v. Stiffel Co.*, 376 U.S. 225 (1964), and *Compco Corp. v. Day-Brite Lighting, Inc.*, 376 U.S. 234 (1964), which hold that a state may not use unfair-competition law to bar the copying of what Congress left unpatented and uncopyrighted. The court added policy reasons of its own: supervising an imitated performance would present "very difficult, if not impossible, problems of supervision for a court of equity"; recognizing a performer's right in a copyrighted work "would impose undue restraints on the potential market of the copyright proprietor," because a prospective licensee would have to clear rights with every performer who might claim an interest in the underlying work; and a monopoly letting a performer stop others from imitating his "postures, gestures, voices, sounds, or mannerisms" might impede rather than "promote the Progress of useful Arts."

On the **Lanham Act**, the analysis followed from the same premise. Section 43(a) reaches false designations of origin and misrepresentations likely to confuse consumers about source or sponsorship. The court found no violation because Booth's voice did not operate as a trademark and the commercials made no false representation that she sponsored or endorsed the product. Without a likelihood of consumer confusion about origin or endorsement, there was no federal claim.

On **defamation**, the court found nothing defamatory. Booth pleaded libel per se, arguing that the commercials told the public she had been reduced to anonymous commercial work and that "her talents have deteriorated and are less valuable." She cited *Lahr* for the proposition that an anonymous imitation can defame the performer imitated. The court answered that *Lahr* rested on Massachusetts law, and that under New York law a statement must be defamatory on its face and defamatory as to the plaintiff, failing which she must plead and prove special damages. The commercials never referred to Booth or used her name. And even assuming the public associated the Hazel voice with her, performing a voice-over would not tend directly to injure her in her business or profession: there was no allegation the imitation was performed in an inferior manner, and a star performer's endorsement of a product is a common occurrence indicating neither a diminished reputation nor a loss of professional talent, "though plaintiff herself might prefer to avoid such engagements."

## Why New York said no

Part of the answer is the shape of New York's identity rights. New York has no broad common-law right of publicity of the kind California would later recognize; appropriation claims run instead through Sections 50 and 51 of the Civil Rights Law, a statute enacted in 1903 that, as it read in 1973, reached only the unauthorized commercial use of a living person's **name, portrait, or picture**. A voice was not on that list, and Booth did not sue under the statute. Her case had to be litigated as unfair competition, defamation, and Lanham Act theories instead.

Booth did press a right-of-publicity theory, and it is worth being precise about why it failed. She invoked *Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc.*, 202 F.2d 866 (2d Cir. 1953), and its successors as protecting her name, appearance, likeness, and personality. The court did not reject the theory. It held that those cases require the plaintiff to show that her name or likeness was used, and the Burst commercials were anonymous and used neither.

That is the hinge of the case, and it is narrower than the reputation of *Booth* suggests. The court never announced that a voice can never be protected in New York. It held that this plaintiff had shown no use of her name or likeness, no trademark function in her voice, no competition between the parties, and no representation identifying her, all while the defendants held a license to the very character being portrayed. The rest of the reasoning was federal rather than state law: *Sears* and *Compco* left uncopyrighted matter free to copy, and that policy prevailed over "whatever secondary meaning may be attached to her voice as that of the television series' Hazel."

## The jurisdictional fault line: Lahr, Booth, and Midler

Placed beside its companions, *Booth* completes a revealing map of mid-century American law on voice imitation:

- **Massachusetts (*Lahr*, 1962):** voice imitation can state claims for unfair competition and defamation, because the law there was willing to treat the diverted audience and the false impression of decline as cognizable injuries.
- **New York (*Booth*, 1973):** voice imitation alone is not actionable, because the plaintiff showed no use of her name or likeness and no trademark function in her voice, and the federal free-imitation policy of *Sears* and *Compco* prevailed over whatever secondary meaning her voice had acquired.
- **California (*Midler*, 1988):** voice imitation is actionable as appropriation of identity, because California recognized a robust common-law right of publicity that the court held a distinctive voice could trigger.

The lesson is that, for most of the twentieth century, whether a famous voice could be imitated with impunity depended almost entirely on the forum. *Booth* is the case that proves there was never a single national rule, only a patchwork that turned on each state's privacy and unfair-competition traditions.

## Open questions

*Booth*'s reasoning leaves several seams. The court required an "additional element" (name, likeness, or trademark use) but did not catalogue what else might qualify; a sufficiently explicit suggestion of endorsement, for instance, might satisfy both the unfair-competition and Lanham Act standards even without a name. New York law has also moved, and in a direction that matters here. In 1995 the legislature amended Sections 50 and 51 to add "likeness" and "voice" to the protected attributes, so a plaintiff in Booth's position today would have a statutory hook the 1973 court did not have; in 2020 New York enacted Section 50-f (effective 2021), a postmortem right for deceased personalities and performers that expressly reaches computer-generated "digital replicas" of a voice or visual likeness. What the statutory word "voice" does against a sound-alike who imitates rather than reproduces a person's voice, and against AI-generated audio, remains contested. There is also a live question whether modern false-endorsement doctrine under the Lanham Act, as developed after *Booth*, would treat a convincing celebrity sound-alike as inherently implying sponsorship, a theory the 1973 court did not have before it in developed form.

## Implications

- **A voice alone may not be protected. It depends on the state, and on the year.** *Booth* demanded an additional element such as name, likeness, or trademark use; the governing jurisdiction and the current version of its statute both have to be checked before assuming a remedy exists.
- **Free-imitation policy did the work.** *Booth* turned on *Sears* and *Compco*: what the federal patent and copyright laws leave uncopyrighted is generally free to copy, and state unfair-competition law cannot undo that.
- **Legislatures move faster than the common law here.** New York did not extend *Booth* by judicial decision. It amended the statute in 1995 to add voice, and again in 2020 to address digital replicas of the dead.
- **Plead the additional element.** A plaintiff in a *Booth*-type jurisdiction should anchor the claim to an affirmative misrepresentation of endorsement or to use of name or likeness, not to imitation standing alone.
- **Forum and choice of law are outcome-determinative.** The *Lahr*/*Booth*/*Midler* split shows that the same facts can win or lose depending on which state's law applies.
- **The analysis predates modern AI questions.** *Booth*'s free-imitation logic will be tested hard by synthetic voices that evoke a person without using a name or image.

## Frequently asked questions

**Why didn't Shirley Booth have a right-of-publicity claim?** She raised one and lost it. Booth invoked the right of publicity recognized in *Haelan Laboratories v. Topps Chewing Gum* (2d Cir. 1953), but the court held those cases require the plaintiff to show use of her name or likeness, and the Burst commercials were anonymous and used neither. New York's privacy statute was no help either: as Civil Rights Law §§ 50–51 read in 1973, they covered only name, portrait, and picture. Voice was not added until 1995.

**How can *Booth* and *Lahr* reach opposite results on similar facts?** They apply different states' law. Massachusetts law in *Lahr* supported a defamation theory for anonymous voice imitation; New York in *Booth* required a showing of name or likeness use, or a trademark function in the voice, and found none. There was no uniform national rule.

**Would the result be different today?** Quite possibly. New York amended Civil Rights Law §§ 50 and 51 in 1995 to protect "likeness" and "voice", so a sound-alike plaintiff now has a statutory theory Booth did not have, and false-endorsement law under the Lanham Act is far more developed than it was in 1973. What is still unsettled is whether imitating a person's voice, as opposed to reproducing it, counts as using that person's "voice" under the statute.

## Authorities and sources

- *Booth v. Colgate-Palmolive Co.*, 362 F. Supp. 343 (S.D.N.Y. 1973) (No. 71 Civ. 932): [Justia](https://law.justia.com/cases/federal/district-courts/FSupp/362/343/1449112/) and [Studicata case brief](https://studicata.com/case-briefs/case/booth-v-colgate-palmolive-company/).
- *Lahr v. Adell Chemical Co.*, 300 F.2d 256 (1st Cir. 1962): the contrasting Massachusetts result, [Justia](https://law.justia.com/cases/federal/appellate-courts/F2/300/256/346595/).
- *Midler v. Ford Motor Co.*, 849 F.2d 460 (9th Cir. 1988): the later California right-of-publicity decision, [full text via Law.Resource.Org](https://law.resource.org/pub/us/case/reporter/F2/849/849.F2d.460.87-6168.html).
- New York Civil Rights Law §§ 50–51: the statutory privacy right, which covered only name, portrait, and picture when *Booth* was decided and since the 1995 amendment covers name, portrait, picture, likeness, and voice, [§ 50](https://www.nysenate.gov/legislation/laws/CVR/50) and [§ 51](https://www.nysenate.gov/legislation/laws/CVR/51) via the New York State Senate.
- New York Civil Rights Law § 50-f: the postmortem right for deceased personalities and performers, expressly reaching digital replicas, [via the New York State Senate](https://www.nysenate.gov/legislation/laws/CVR/50-F).