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Singer Tom Waits has built a devout following over three decades. His unique vocal style has such an appeal that advertisers have long sought permission to use his songs in commercials. Waits has always refused. That hasn't stopped some advertisers from imitating him, and that has led the artist to take legal action. Joel Rose of member station WHYY has this report on the latest dispute.
JOEL ROSE reporting:
Tom Waits is adamant about not having his songs, or anything that sounds like them, used in commercials.
Mr. TOM WAITS (Musician): I'd rather have a hot lead enema. I hate it. I saw a commercial for toilet paper, and they were using "Let the Good Times Roll," you know? It's like, `Man, don't do that.'
ROSE: Waits is so adamant about not having his own songs used in ads that he hasn't hesitated to sue. In 1988, he was at a radio station in Los Angeles when he heard a spot.
Mr. WAITS: And it was a damn good impersonation. When I first heard it I said, `Man, that is me.'
ROSE: It was an ad for Doritos.
(Soundbite of ad)
Unidentified Man: There's a new tortilla chip called Salsa Rio Doritos. It's buffo, boffo, bravo, gung-ho, tallyho but never mellow.
ROSE: Waits thought that sounded a lot like his song "Step Right Up."
(Soundbite of "Step Right Up")
Mr. WAITS: (Singing) Everyone's a winner, bargains galore. That's right. You too can be the proud owner of the quality goes in before the name goes on.
ROSE: It turns out Frito-Lay's ad agency hired a soundalike singer to voice the ad. Waits' lawyers argued that fans would think Waits himself had decided to endorse the chips. A jury agreed and ordered Frito-Lay to pay more than $2 million in damages. Waits says advertisers are exploiting the emotions his songs evoke.
Mr. WAITS: And all it does is hurt my reputation. I'm not a jingle writer. I have an audience and I have my own relationship with them and my own credibility that I've tried to sustain over the years.
ROSE: It's that connection that makes Waits attractive to advertisers, says Ron Lawner, chairman of the ad agency Arnold Worldwide.
Mr. RON LAWNER (Arnold Worldwide): His lyrics are personal, his voice is really soulful and his delivery is really unique, and if you've created an idea around that character, it gets hard to walk away from, I guess.
ROSE: Lawner says his firm does not use soundalikes, but he says others do.
Mr. LAWNER: And sometimes you can get away with it, but it doesn't seem like a smart thing to do, number one, legally, and number two, it's not real. And I know advertisers have never been accused of being too real, but really the best is.
ROSE: Lawner says some artists can benefit from licensing their work to commercials. Virtually unknown musicians can reach a wide audience. Still, some established artists have refused to allow their songs to be used in commercials. In 1985 an ad agency for the Ford Motor Company asked Bette Midler for permission to use her performance of the song "Do You Want to Dance?"
(Soundbite of "Do You Want to Dance?")
Ms. BETTE MIDLER: (Singing) Do you want to dance and hold my hand?
ROSE: When Midler said no, the ad agency hired a backup singer from her band, and instructed her to sound like the real thing. Midler sued and won. The case set an important precedent, according to Sheldon W. Halpern, who teaches at Albany Law School.
Mr. SHELDON W. HALPERN (Albany Law School): The claim is that you're taking my persona to associate it with your product. Even if you say Bette Midler doesn't like to drive a Ford, but you're still using her to call attention to your product, it's actionable. You have impinged her economic interest.
ROSE: Specifically her publicity rights. In other words, it's not only her songs but her persona or style that attract fans, and Tom Waits says his persona is being violated again, this time in an ad for the European carmaker Opel. The company ran the offending TV spots in Scandinavia. The music doesn't sound much like Tom Waits, but he thinks the voice does.
(Soundbite of Opel ad)
Unidentified Man: (Singing) ...over again.
ROSE: Opel officials wouldn't speak on tape for this story. In a statement, the company, which is owned by GM, says it's, quote, "surprised" that Waits considers the music to be a potential misuse of his singing style. But when it comes to proving misuse, European law is different than American law, says Rick Kurnit, a partner at the firm Frankfurt, Kurnit, Klein & Selz. He says the notion of publicity rights is an American idea that's been slow to catch on overseas. But Kurnit says Waits could make a case against Opel in European courts relying on the notion of false endorsement.
Mr. RICK KURNIT (Frankfurt, Kurnit, Klein & Selz): If you were to do surveys or otherwise establish that everybody thinks that it's Tom Waits, then there would be a good claim that there is an appropriation of his celebrity.
ROSE: For his part, Waits seems determined to fight European advertisers on their home turf. He says he's currently exploring his options in Scandinavia and he's suing carmaker Audi in Spanish court over an alleged use of a soundalike. Waits says money is not the only motivation. He insists it's also in defense of the songs themselves.
Mr. WAITS: You know, that's the thing with tunes is that, you know, once you've heard them over time and they've developed a lot of meaning in your personal life, you know, and there's things that have happened and that song has been the soundtrack for in some way. You know, you don't want to see it used as selling underwear or diapers.
ROSE: Waits says his songs are still not for sale at any price and neither is his voice. For NPR News, I'm Joel Rose.
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