Tin Pan Apple v. Miller Brewing — Right of Publicity

When a beer ad hired Fat Boys imitators, a New York court let the look-alike, copyright, and Lanham Act claims proceed but held that copying a distinctive voice does not, by itself, violate the state privacy statute.

In 1987 the Fat Boys turned down a Miller beer commercial—so the advertisers, the rap group alleged, hired three imitators to do the job instead, mimicking the trio’s look and their signature human-beatbox sounds, the trilling “Brrr” and the percussive “Hugga-Hugga.” The Fat Boys and their company sued. In Tin Pan Apple, Inc. v. Miller Brewing Co., 737 F. Supp. 826 (S.D.N.Y. 1990), Judge Charles S. Haight, Jr. sorted the claims with care, and the result is a useful map of where personality protection in New York begins and ends. The look-alikes could support a claim; the copying could support copyright and trademark theories; but the imitation of the group’s distinctive voices, standing alone, did not violate the state’s privacy statute.

At a glance

Case: Tin Pan Apple, Inc. v. Miller Brewing Co., No. 88 Civ. 4085 (CSH), 737 F. Supp. 826 (S.D.N.Y. 1990).
Court: United States District Court, Southern District of New York; Judge Charles S. Haight, Jr.
Posture: Defendants’ motion to dismiss under Rule 12(b)(6); granted in part and denied in part.
Holding: Copyright, Lanham Act, and New York Civil Rights Law §§ 50-51 look-alike claims may proceed; the §§ 50-51 claim premised on imitation of the plaintiffs’ voices (a “sound-alike” theory) is dismissed because the statute protects name, portrait, and picture, not voice.
Significance: A leading statement that New York’s statutory right of publicity does not reach voice imitation, distinguishing it from California’s common-law voice cases and channeling such claims into copyright and the Lanham Act.

The plaintiffs were Mark Morales, Darren Robinson, and Damon Wimbley—the Fat Boys—together with Tin Pan Apple, Inc., their corporate entity. They alleged that Miller Brewing and its advertising agency, after the real group declined to appear, produced and aired a thirty-second prime-time commercial featuring three performers who resembled the Fat Boys and reproduced their distinctive style and sounds. The defendants moved to dismiss the entire complaint.

The sound-alike theory falls short under §§ 50-51

The most consequential ruling concerns voice. New York Civil Rights Law §§ 50 and 51 prohibit the use of a living person’s “name, portrait or picture” for advertising or trade without written consent. The plaintiffs urged the court to read that protection to cover imitation of their voices, arguing that the “Brrr” and “Hugga-Hugga” sounds were as identifying as a face. Judge Haight declined the invitation. The statute, he reasoned, enumerates name, portrait, and picture, and a sound-alike performance is none of those. The voice-based theory therefore did not state a separate cause of action under the Civil Rights Law, and that claim was dismissed under Rule 12(b)(6).

That holding is the heart of the case for publicity-law purposes. It reflects the textual discipline New York courts bring to §§ 50-51: because the right exists only by statute, courts apply the statute’s enumerated terms rather than a broad, judge-made notion of “identity.” A distinctive voice may be central to a performer’s commercial value, but in New York it is not, by itself, the kind of attribute the privacy statute guards.

What the look-alikes could support

The visual side of the claim fared differently. Defendants also moved to dismiss the §§ 50-51 claim based on the use of look-alikes, and on that point the court denied the motion. Crediting the allegation that the hired performers physically resembled the Fat Boys, Judge Haight found that the use of look-alikes could state a claim under New York law, because presenting imitators who appear to be the plaintiffs can amount to using their “portrait or picture” for trade.

The contrast is instructive. Imitating how the group looked implicated the statute’s protection of portrait and picture; imitating how the group sounded did not. The line New York draws is thus between visual identity, which the statute reaches through the words “portrait or picture,” and aural identity, which the statute’s text does not mention. Whether the look-alikes here crossed that line was a question for later proof, but the claim was at least legally cognizable.

Copyright and the Lanham Act carry the rest

Because the privacy statute could not capture the voice imitation, the plaintiffs’ strongest avenues lay elsewhere. The court allowed the copyright infringement claims to proceed, including the theory that the commercial copied protectable elements of the group’s musical and lyrical expression—the very “Brrr” and “Hugga-Hugga” sounds the plaintiffs said were original to them. Whether those short vocal devices were sufficiently original to warrant protection, and whether the defendants had copied them, were fact questions unsuited to dismissal.

The court likewise let the Lanham Act claims advance. Section 43(a) of the Lanham Act reaches false or misleading representations likely to cause confusion about sponsorship or endorsement. The allegation that a commercial built around Fat Boys imitators would mislead viewers into believing the group endorsed Miller beer fit that theory. Several other counts, however, were dismissed with prejudice. The net effect was to narrow the case to its durable claims—copyright, false endorsement, and the look-alike statutory theory—while pruning the voice-based and weaker counts.

Open questions

Could a voice-imitation claim ever succeed in New York? Tin Pan Apple forecloses it under §§ 50-51, but plaintiffs may still pursue voice imitation through copyright, the Lanham Act, or common-law unfair competition, where different elements apply.
How short can a protectable sound be? Whether brief vocal devices like “Brrr” or “Hugga-Hugga” clear copyright’s originality threshold remained for later proceedings and is a recurring puzzle for distinctive musical signatures.
When do look-alikes become a person’s “picture”? The opinion accepted that imitators can implicate §§ 50-51, but how close the resemblance must be, and how confusion is shown, stayed open.

Implications

New York protects image, not voice, by statute. Under §§ 50-51, copying a distinctive voice is not actionable as a privacy or publicity violation; the statute’s protection runs to name, portrait, and picture.
Choice of law matters enormously. California’s common law reached deliberate voice imitation in Midler and Waits; the same advertising conduct can succeed there and fail under New York’s statute.
Plead around the gap. Where voice is the asset, litigants should anchor claims in copyright and Lanham Act false endorsement rather than the state privacy statute.
Look-alikes carry real risk. Hiring performers who resemble a known act can support a §§ 50-51 claim and a false-endorsement theory, even when no voice issue is present.
Declining a deal is not consent. That the Fat Boys turned down the commercial did not authorize the use of imitators; advertisers who proceed with substitutes invite exactly this kind of suit.

Frequently asked questions

Did Tin Pan Apple recognize a right against voice imitation? Not under New York’s privacy statute. The court held that imitating the Fat Boys’ distinctive vocal sounds did not, by itself, state a claim under New York Civil Rights Law Sections 50 and 51, which protect a person’s name, portrait, or picture. The voice-based statutory theory was dismissed, though copyright and Lanham Act claims about the imitation proceeded.

Then what survived the motion to dismiss? The court allowed the copyright infringement claims, the Lanham Act false-endorsement and unfair-competition claims, and the New York Section 50 and 51 claim based on visual look-alikes to go forward. It dismissed the separate sound-alike statutory claim and several other counts.

How does this compare to California voice cases like Midler v. Ford? California recognized a common-law right against deliberate imitation of a famous singer’s distinctive voice in Midler v. Ford and Waits v. Frito-Lay. Tin Pan Apple shows that New York’s narrower statutory scheme does not reach voice as such, so the same conduct can yield different results depending on the governing state law.