Tom Waits, scourge of sound-a-like soundtracks, is at it again. First it was crisps, now it’s the motor industry he has his teeth into. With a case pending in Germany against Opel, Audi was in the firing line here.
Topic: People in advertising
Who: Tom Waits and Audi
Where: The Spanish Appeals Court
When: January 2006
What happened:
According to a report on US law firm Reed Smith's "Adlaw by request" service, a Spanish Appeals Court recently upheld an earlier ruling in November 2005 which awarded singer/songwriter Tom Waits $43,000 for copyright infringement and an additional $36,000 for violation of his "moral rights".
Waits had taken action in respect of an Audi commercial broadcast in Spain. Allegedly it used a soundtrack which was too close for comfort to his song "Innocent when you dream".
The proceedings were also taken against the production company that produced the Audi ad, Tandem CampMany Gausch. In its comments on the verdict through its lawyer, the production company admitted that a singer had been hired to write and record an original song that would sound like Mr Waits. They believed, however, that they had acted in good faith and were not violating Mr Waits' rights.
Clearly, however, the Spanish Court took a different view.
Why this matters:
According to reports, this is the first time that a Spanish Court has accepted that a singer's voice has "likeness rights."
This is not the first time, however, that Mr Waits has been successful in proceedings against advertisers.
Apart from a celebrated US case in 1992 against Frito-lay in which $2.5 million damages were awarded, there is also a pending action in Germany, as previously reported on marketinglaw, against Opel in respect of a McCann Erickson-made commercial. This features a performance of Brahms' "Lullaby" by a singer whose voice Waits alleges to be too close to his own to be legal.
As this case and many others before it confirm, the use of "soundalikes" is an inherently risky enterprise for those producing ad soundtracks and should only be embarked upon with the greatest of care and expert legal advice.
