January 20, 2006

"I have a moral right to my voice. It's like property - there's a fence around it, in a way."

Don't try to make any money imitating the distinctive voice of Tom Waits. He will pursue his legal remedies:
Sixteen years ago he won an influential case against Frito-Lay over a vocal sound-alike in a Doritos commercial, and he has pursued imitators ever since. Last Friday Mr. Waits was awarded damages in a case against the Audi division of Volkswagen for a commercial in Spain using music that was similar to his song "Innocent When You Dream," sung in a voice like his. Another lawsuit is pending in Germany against the Opel division of General Motors, this one for a version of the Brahms "Lullaby" performed in what he calls a suspiciously Waitsian voice.

"It does take a tremendous amount of time, energy and money" to pursue these cases, Mr. Waits said from his home in Northern California. "But in a way," he added, "you're building a road that other people will drive on. I have a moral right to my voice. It's like property - there's a fence around it, in a way."

At a time when musicians are increasingly open to licensing their music for advertising, television and other commercial uses, Mr. Waits has steadily built a reputation not only for refusing to license his music, but also for aggressively defending his style as a unique legal property.

"It's part of an artist's odyssey," he said, "discovering your own voice and struggling to find the combination of qualities that makes you unique. It's kind of like your face, your identity. Now I've got these unscrupulous doppelgängers out there - my evil twin who is undermining every move I make."...

In both cases, Mr. Waits said, the agencies had first approached him to perform and then, when he turned them down, hired imitators.
You'd think the companies have at least learned not to ask him first. Without that juicy nugget of evidence, I wonder if he can keep winning these things. I'm not an expert in this area of law. I just find it interesting. I'm trying to picture the trial. Are there experts who can testify about the elements of a gravelly voice and a doomed attitude?


MadisonMan said...

I'll show my ignorance: What does Tom Waits' voice sound like?

What if a person with a voice that sounds like Tom Waits' wants to do commercials? Are they barred from that even if they've no clue who Tom Waits is?

XWL said...

" I'll show my ignorance: What does Tom Waits' voice sound like?"

He sounds like a mumblier version of Louis Armstrong (for confirmation listen to the preview of Track Two), or alternately a deeper, gravelier, drunker Liza Minnelli (Track 13)

How do you rip-off a rip-off artist?

That Doritos case was wrongly decided back then, I think one of the arguments in the case was the 'Louis Armstrong' defense.

I suspect winning this case in Germany will be far more difficult than the case he won 16 years ago.

The 'If they both sound like Satchmo, You must Acquit' defense (sorry no rhyme) may or may not work.

The Spanish case was most likely successful because of the combination of both a sound-a-like and a song-a-like, but with the use of a public domain song Opel will be in a stronger position.

I could be wrong though. And he was very good in Down By Law.

Dave said...

I never understood the appeal of Down by Law.

But then I never understood the appeal of New Orleans generally.

Mark Daniels said...

I found this, toward the article's end, interesting:

"Mr. Waits said there were two kinds of imitation. 'I don't mind if someone wants to try to sound like me to do a show,' he said. 'I get a kick out of that'

"'I make a distinction,' he added, 'between people who use the voice as a creative item and people who are selling cigarettes and underwear. It's a big difference. We all know the difference. And it's stealing. They get a lot out of standing next to me, and I just get big legal bills.'"

But, I wonder is the distinction so obvious? If it's wrong for an advertiser to mimic an artist's style and approach to create a jingle--and I think that it probably is, why isn't it also wrong for another artist to engage in such mimcry? After all, the imitating artist is just as interested in making a buck from sounding like somebody else as an advertiser.

It all seems a bit slippery, though. Art, of all kinds, has always been advanced by one artist imitating others and tossing in their own ideas and experiences. John Lennon said in his famous 'Rolling Stone' interview, for example, that he conceived of Chuck Berry's songs as a chair and his own first efforts at composition as his attempts to produce his own versions of the chair.

Of course, Lennon remained dangerously imitative of Berry for years. So much so that when the Beatles were about to record 'Come Together,' a fairly obvious ripoff of Berry, lyrically as well as musically, Paul McCartney had a suggestion. "Speed it up," he told Lennon, otherwise the charge of plagiarism might stick. Lennon sped the song up.

George Harrison's obvious ripoff of "He's So Fine" in "My Sweet Lord" resulted in his paying hefty royalties and damages.

I always thought that parts of McCartney's 'Oh Darling' sounded a lot like 'Shake a Hand.'

The point is that imitation is always a form of flattery, true of the Beatles as of every other musical artist who's ever stepped into a recording studio. But how does one determine when the imitation is genuine or not?

And how accountable for derivativeness must artists (as well as advertisers) be held for their use of or expansion on the styles of others?

If Badfinger hadn't been an Apple band, for example, might it have been appropriate for them to have paid roaylties to the Beatles for using their sound? How about Stealer's Wheel? Or America, who even used Beatles-producer George Martin on one of their LPs?

The fact that the offending ad agencies approached Waits before ripping him off made his cases more obvious. But it appears to me that, by implication, a whole new battleground in intellectual property rights has been opened. But I'm not a lawyer...What do you think, Ann?

Mark Daniels

Mark Daniels said...

I neglected to mention one of the most notorious Beatles-sound-alike acts: Oasis.

Mark Daniels

goesh said...

Alas! That I could'st but sing
'er to hear the many coins jingle and ring
verily to issue'th lawyers forth upon a sting
when the dinner bell of Infringement's Feast do'th ting
-The Lonely Donut Man (LDM)

price said...

"Innocent When You Dream" plays during the closing sequence of "Smoke" and it's one of the best uses of any song in a movie ever. I'm really glad he's so selective with what he licences his music to.

Charles said...

Didn't he get a copy of the Supreme Court decision nullifying private property in case of a government need to increase the tax base? So if you can show that using his music allows you to increase employment or sales to support the economy, you don't have to compensate him - he already got his value out of it.

KCFleming said...

I find it interesting to see Tom Waits arguing for property rights, something I fully support.

While Waits’ career has not usually contained explicitly political music, he contributed to the CD The Future Soundtrack For America (July 2004), originally released to fight President Bush's re-election. Now the liner notes state the artists want "to make our increasingly messed-up country (the United States) a better place".

His 1976 album Small Change has a cut apparently meant to deliver a scathing indictment on materialism and capitalism, at, so says the reviewer.

His 2004 album Real Gone is explicitly anti-Iraq war. And heckfire, he lived with uber-leftist Rickie Lee Jones, for pete's sake.

His politics are left-liberal, then, I would guess. Does neo-socialism still recognize the liberty, democracy, and capitalism value of property?? Man, whoda thunkit would come from Mr. Waits!!

Wade Garrett said...

They can imitate his voice, but can they imitate his 'whiskey-soaked charisma?'

P_J said...

Charles - LOL! Kelo as the end of all property rights - I love it.

Mark - Good points. Pastors walk a fine line here, too. We all read commentaries, look at how others have dealt with a passage, and incorporate others' ideas into our teaching and preaching. All of us are products of other people's influence. But I think there is a line and you know when you cross it.

While I don't feel the same way about preaching, I can understand Waits' frustration and his sense of losing something by others' ripping off his work for profit. Of course, as XWL points out, there probably wouldn't be a Tom Waits without Louis Armstrong. So how would Waits feel about a suit from Satchmo's estate?

Unknown said...

I do not think Tom Waits can be pigeonholed, and have always enjoyed his take on things. Certainly one cannot reasonably argue that anyone who opposed President Bush (or his policies) advocates the elimation of a regulated free market. Anyway, I think Mr. Waits' chief objection to the use of his "property" is its use in a commercial for something he does not particularly want to endorse. He also likely has a more general objection to the use of art for non-artistic commercial purposes as well.

For an interesting view of this issue, you might want to do a Google search on a band named "Negativeland" who, I believe, was sued by U2.

Sean E said...

"'Innocent When You Dream' plays during the closing sequence of "Smoke" and it's one of the best uses of any song in a movie ever. I'm really glad he's so selective with what he licences his music to."

"Underground" was featured in the (second rate) animated movie "Robots". I'm not sure he's all that selective anymore.

Truly said...

He also sounds like he's ripping off Russian musical icon Vladimir Vissotski (http://en.wikipedia.org/wiki/Vladimir_vissotski).

VV was, in any case, far more creative--and had a real appreciation for what it means to be oppressed.

Kurt said...

Susan Sontag once wrote in her essay "On Style" that "Style is art"--though the formulation may have actually been "'Style' is art," which says something a bit different.

Nevertheless, what's at issue here is whether or not a style of singing can be considered property, and I would argue that singing style is more a function of culture (or a reaction to culture) than an item of property in and of itself. The famous folklorist Alan Lomax made a career out of documenting different kinds of song styles and singing styles, and one of the topics he explored was the relationship of Armstrong's style of jazz to various folk styles.

So it would seem to me that Waits might notice similarities worth commenting on, but he's got a pretty thin case.

Troy said...

This is why the public domain classics will always remain with us. The licensing fees that bars, churches, high school bands and choirs, etc. have to pay for jingles, musicals, etc. will always keep the free (and much much better anyway) Bach, Mozart, Handel, traditional melodies et al. always available.

I'm glad Mr. Waits' descendants will always be able to get some cash on his royalties, but who the hell will care enough to pay in a few decades?

It's hard to pick a side in this fight. The bloated self-important "artist" or the huge bloated "take it if we want it" corporation.

Marghlar said...


I did some work on the publicity tort last year (which is the legal issue in these cases), and you are right. Intent is key here -- and the evidence that they asked him, he refused, and they employed a substitute makes for a pretty decent showing that they wanted, not just someone who sounded like that generally, but too convey an impression that it was Tom Waits who was endorsing their product by lending his music. (This would be a pretty good endorsement, btw, as he has a policy of not doing ANY commercial endorsements.) If they had just asked the other guy first, I wonder if he would have ever realized anything had happened... Anyway, he probably couldn't have met his showing that the appropriation was intentional.

For more info on the tort, check out Rest. 3d Unfair Competition §46-49.

All: For those who are going on about artistic imitations v. commercial uses, case law draws a clear distinction. There are First Amendment issues re: extending the publicity tort to cover artistic uses, including parodies and just artists who "sound similar" to other artists. It is because commercial speech is less protected that the tort comes out this way (as well as courts viewing the policy concerns differently). So the distinction drawn by Tom Waits is entirely correct -- the law would allow him to go after these advertisers, but not a "sound-alike" artist or parody, for the most part.

Unknown said...

Here is a quote from Tom Waits about his concern with regard to the corn chip case he won against Frito Lay, which I think stakes out the property interest better than any statute can:

"I get it all the time, and they offer people a whole lot of money. Unfortunately I don't want to get on the bandwagon. You know, when a guy is singing to me about toilet paper — you may need the money but, I mean, rob a 7-11! Do something with dignity and save us all the trouble of peeing on your grave. I don't want to rail at length here, but it's like a fistula for me. If you subscribe to your personal mythology, to the point where you do your own work, and then somebody puts decals over it, it no longer carries the same weight. I have been offered money and all that, and then there's the people that imitate me too. I really am against people who allow their music to be nothing more than a jingle for jeans or Bud. But I say, "Good, okay, now I know who you are." 'Cause it's always money. There have been tours endorsed, encouraged and financed by Miller, and I say, "Why don't you just get an office at Miller? Start really workin' for the guy." I just hate it... The advertisers are banking on your credibility, but the problem is it's no longer yours. Videos did a lot of that because they created pictures and that style was immediately adopted, or aborted, by advertising. They didn't even wait for it to grow up. And it's funny, but they're banking on the fact that people won't really notice. So they should be exposed. They should be fined! [bangs his fist on the table] I hate all of the people that do it! All of you guys! You're sissies!"

SWBarns said...

Midler v. Ford Motor Company, 849 F.2d 460 (9th Cir. 1988) is the only other "Voice" case that I can recall. In Midler, the 9th Circuit stated "when a distinctive voice of a professional singer is widely known and deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California."

In both the Midler and the Waits cases, the defendant had pretty dirty hands. Both asked the plaintiff to perform and when the offer was refused directed other 'voice talent' to sound like the plaintiff.

California Civil Code Section 3344 “Use of Another's Name, Voice, Signature, Photograph, or Likeness in Advertising or Soliciting Without Prior Consent” is very specific in its protection and a right of publicity claim was rejected by the 9th circuit in the Midler. Waits won $2 million in punitive damages in the Frito Lay case so He probably has the energy and money to pursue any other cases.

Finn Alexander Kristiansen said...

I wonder if they explored the intent of the people who created the various ads. Were they looking for "someone who sounds like Tom Waits, but not Waits"?

They should have just used the dead prophet voice of Leonard Cohen. And he lets his music be used in other people's artistic endeavors.

AJ Weberman said...
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