Looknsee Photography wrote:
Good for him for not selling out.  I think there too much of that nowadays, especially because I don't thin revenue is a valid measure for art.  (I'm thinking about all the celebrity spokespeople & voice over folks -- you are selling out).

i've had quite a few philosophical discussions with my 28 yo son for years regarding "selling out." to his generation, being asked to promote ones image/songs/persona is a mark of being successful. it's nothing like it used to be way back when. to a lot of youngsters, there's nothing wrong with self-marketing.

that case is ancient. i remember when it was going on. i'm kind of mixed on it. the precedent they used to win in court is kind of shaky, to say the least. it could have very easily have been argued (by the defendants) to be parody. i don't know if that's the tack they took, but they should have.

regardless, the ad was dumb. i remember it.

in his early days (waits has had at least three distinct voice 'styles' in his career), someone could have argued he was imitating the likes of louis armstrong, or many other artists.

regardless, i'm a huge fan. always have been. "step right up" is such a great song. and he's allowed his music to be used in numerous movies and tv shows from time to time. i remember the scene in 12 monkeys, where willis is wandering the skid row area of philly, while waits' "the earth died screaming" is playing over the scene. there was an episode of the old homicide show, where they used "cold, cold ground." but those--of course--were used with his blessing.

Looknsee Photography wrote:
When Tom Waits Sued Frito-Lay Over a Doritos Ad

I thought this was interesting.  Waits sued Frito-Lay over the usage of his likeness (and not over a copyright infringement).  Frito-Lay had used a Tom Waits "Imitator" for a commercial.  Seems to indicate that if you have a recognizable style, you can sue successfully.

Thoughts?  (Tom Waits is one of my favorite singer-song writers).

Classic violation of right of publicity, such as CA Civ Code 3344. Waits was right.

GK photo wrote:
it could have very easily have been argued (by the defendants) to be parody. i don't know if that's the tack they took, but they should have.

1)  Well, "parody" and/or "fair use" is not the panacea for copyright violations.  Both "parody" & "fair use" have strict legal definitions and cannot be applied in all cases.

2)  The Waits - Doritos cases was not argued as a copyright violation.  It was argued that they appropriated Waits' likeness (specifically his vocal style) without permission.  Indeed, there was a significant audit trail that showed that that was Frito-Lay's intention for the beginning.

Looknsee Photography wrote:

1)  Well, "parody" and/or "fair use" is not the panacea for copyright violations.  Both "parody" & "fair use" have strict legal definitions and cannot be applied in all cases.

2)  The Waits - Doritos cases was not argued as a copyright violation.  It was argued that they appropriated Waits' likeness (specifically his vocal style) without permission.  Indeed, there was a significant audit trail that showed that that was Frito-Lay's intention for the beginning.

again, why i say they should have argued that. can alec baldwin be sued for his portrayal of trump? no, because it's obviously a parody. was the doritos ad so blatant a likeness copy? sure, but i have seen other such ads (not featuring tw) that were in the same vein, and yet never litigated.

i get why he filed the suit, i just don't get why he prevailed. i may love tw, but at that point in his career (or any point) he was never considered mainstream. that's part of his appeal. at least to me. look no further than his tune "big in japan", which didn't come out until mule variations. great fucking song, great fucking reference.

Hunter  GWPB wrote:
I had not heard of Waits prior to this thread.  If I am familiar with any of his music, I am not aware of an association with him.   I apologize for my ignorance to those that are fans.  I am interested in this thread because I wonder if the Waits result had some bearing on the "Blurred Lines" suit.   I hate that song, but I don't understand why the copyright violation claim prevailed.

Waits has been around for a long time.  I remember listening to his second album, "Heart of Saturday Night" around the same time I was listening to Sgt. Peppers.  I hate going to concerts, but I went to see him when he was the opening act for Bonnie Rait sometime in the mide 1970s. 

Over the years, his music became more experimental & his voice became more gravely.  His music has been licensed in a lot of films, so it wouldn't surprise me if you've been exposed to some of his songs.  His style started out as semi-country & western, and he's evolved at stages to incorporate jazz, blues, rock, and experimental.  Throughout, his lyrics are very strong & poetic.  He is my favorite musical artists, bar none.

Again, his "Doritos" suit is nothing like the "Blurred Lines" suit -- "Blurred Lines" was a copyright violation lawsuit:  the plaintiffs claimed that the song was too similar to their original composition.  The "Doritos" suit was about Frito-Lay using a "Wait impersonator" to make it sound like Waits himself was endorsing the product.

FFantastique wrote:
Plead ignorance as above BUT love Doritos! ✔️

I hate how they turn my fingertips orange.  That dust gets everywhere.

kickfight wrote:
Side one of Swordfishtrombones (with the exception of a plodding Hammond organ instrumental that's mostly there to provide atmosphere) is, IMHO, a perfect intro to Waits' music. His earlier records were great, but it was on this album (the first he produced himself) that he took things to the next level:

"Underground"
"Shore Leave"
"Johnsburg, Illinois"
"16 Shells from a Thirty-Ought-Six"
"Town With No Cheer"
"In The Neighborhood"

And as unrelated bonus tracks, a live version of Waits doing "Innocent When You Dream", plus the original video for "I Don't Want To Grow Up" (which, appropriately, was subsequently covered by The Ramones).

That's my favorite Waits record, as it sits right in the middle of his major styles. It's a little bit of everything.

Worth noting that not only did Frito-Lay hire an imitator, they did so AFTER Waits turned them down. As I recall, he had some sort of a paper trail of somebody from Frito telling him guys that sound like him are a dime a dozen and he should really take the deal, or some such.

I remember him saying years ago that he's made more money on lawsuits than on records.

Zack Zoll wrote:
I remember him saying years ago that he's made more money on lawsuits than on records.

i don't know if that's true, but if it is, that's sad. he's probably made some good spending cash by having others cover his songs, too. if i had to guess, i'd think rod stewart's cover of "downtown train" would have pocketed him the most coin. but a lot of folks have covered his songs over the years.

probably the biggest nod would be springsteen (a real jersey guy) covering (pomona's own) waits' "jersey girl".

Zack Zoll wrote:
I remember him saying years ago that he's made more money on lawsuits than on records.

GK photo wrote:
i don't know if that's true, but if it is, that's sad. he's probably made some good spending cash by having others cover his songs, too. if i had to guess, i'd think rod stewart's cover of "downtown train" would have pocketed him the most coin. but a lot of folks have covered his songs over the years.

probably the biggest nod would be springsteen (a real jersey guy) covering (pomona's own) waits' "jersey girl".

Yeah, but lawsuits are costly on a lot of levels -- they can be quite upsetting, at least for people who have a heart.

The "covers" can bring in good money over decades, but Waits' songs have been placed in lots of feature films, and that's big money.  Placing songs in ads is also big money, but Waits typically doesn't do that (nor does he need to).  I'm sure he's quite comfortable financially.

Warren Leimbach wrote:
I wonder about the precedence this sets.


When musicians sign recording contracts in the future, will they routinely have to sign away rights to their likeness as well as their song copyright? 


If your likeness is "property", can the likeness be transferred through inheritance? 
I wonder what dead celebrities' estates will have to say about their relative's  likenesses appearing as CGI characters? 


Will your copyright on your likeness expire?  You were at peak fame when you were 20.  Now you are 70.  Does your face go into public domain?

These are EXCELLENT questions, and I gotta say that it kicks ass that this topic is stimulating these inquiries. I've been fascinated with the literal (as in economic) and figurative (as in symbolic) value of artistic personae since I was a kid obsessed with the Beatles, not just as recording artists but also as commercial identities, after Beatlemania engendered a small cottage industry of products based around their collective and individual likeness, even down to just their iconic hairstyle (the infamous Beatle Wigs of the era). To learn more about how the band's management utterly mishandled that at first, forsaking millions in the process, read all about the "Seltaeb" fiasco.

As to the first question, it's certainly possible but highly unlikely. A recording artist's likeness is often (if not always) the result of artistic decisions about their presentation, which they control for promotional purposes, tied to personality/publicity rights. In re: Beatles, EMI/Capitol were not in the business of merchandising anything other than records, and, as beneficiaries of a full-blown phenomenon, were probably perfectly happy to reap their share of the sales bonanza. So, no... I don't think a record company would demand exclusive rights to the artist's likeness as an aspect of a recording contract agreement, because that's simply an unjustified demand that wouldn't stand up to subsequent legal challenge.

As to the second question, if the artist's likeness is sufficiently iconic, and there's a conspicuous/legally-sturdy paper trail, I'd say yes, control of that likeness is indeed "property" that can be bequeathed, although there are the usual caveats and provisos and so on. For example, this property as it regards Lennon and Harrison would certainly pass from Yoko and Olivia to Sean and Dhani, respectively.

Can a famous person's likeness ever enter into the public domain? Yeah, possibly, but not intentionally; I'd say probably due to a lapse in trademark or negligence or some other technicality. Honestly, I think this a scenario that would probably be defined a) via a court decision, wherein Person A challenged the validity of Person B's claim of perpetual exclusive control of Famous Person C's likeness, etc.... or b) if a specific statute emerged, establishing a certain limit.

As to how this ties back to Waits having control of his vocal likeness, it's hard to say... it seems pretty straightforward in the case of a global conglomerate exploiting his signature sound to advertise junk food, but beyond that, it gets somewhat more nebulous.

Looknsee Photography wrote:

Zack Zoll wrote:
I remember him saying years ago that he's made more money on lawsuits than on records.

Yeah, but lawsuits are costly on a lot of levels -- they can be quite upsetting, at least for people who have a heart.

The "covers" can bring in good money over decades, but Waits' songs have been placed in lots of feature films, and that's big money.  Placing songs in ads is also big money, but Waits typically doesn't do that (nor does he need to).  I'm sure he's quite comfortable financially.

Waits has always been a bit obscure ... Though not as much as he used to be. The actual records themselves were never his biggest income; it was touring, songwriting, licensing, etc. And he's always been smart about it - so much so that there is an urban legend that he used to claim his cigarettes as a tax deduction, as a cost of maintaining his voice

Zack Zoll wrote:
Waits has always been a bit obscure ... Though not as much as he used to be. The actual records themselves were never his biggest income; it was touring, songwriting, licensing, etc. And he's always been smart about it - so much so that there is an urban legend that he used to claim his cigarettes as a tax deduction, as a cost of maintaining his voice

"Obscure"?  Perhaps, but personally, he's been my favorite since the mid-1970s.  His music is included in a lot of films.  Heck, HE appears in a lot of films as a character actor.  You might not know him, but it is likely that your paths have crossed.

Regardless, I think his level of obscurity is not overly relevant.  In the case mentioned here, Frito-Lay wanted him, couldn't get him, and hired someone to imitate him.  He may be obscure, but not so obscure that Frito-Lay didn't go after him.