Tom Waits Looking to Collect Some Chips in Suit

When gravel-voiced recording artist Tom Waits first heard the radio ad for a spicy new brand of corn chips, he got an instant case of heartburn.

The 1988 spot, Waits thought, was a direct knockoff of one of his songs, complete with a slavish imitation of his distinctive voice, which might best be described as the sound of Louis Armstrong gargling with razor blades.

The rough-and-tumble singer reacted by heading straight to his lawyer. Waits, who has recorded 17 albums over the last two decades but vigorously rejects all requests to make commercial endorsements, is suing corn chip giant Frito-Lay Inc. in U.S. District Court in Los Angeles for what amounts to voice theft: having a singer unlawfully appropriate his voice to sell Salsa Rio Doritos.

Waits’ attorneys say that the trial, now in its third week, is the first in which a vocalist could win punitive damages for having his reputation besmirched by an advertising impersonator. Defense lawyers, who say vocal infringement cases are rare, have injected a healthy dose of hyperbole into the case, arguing in court papers that if the trial had occurred during the Dark Ages, there might never have been a Renaissance.

Little public attention has been focused on the court battle, perhaps because Waits is more a cult hero than a household name. But the list of entertainment giants whose past court cases have been cited to U.S. District Judge James M. Ideman is the stuff of supermarket tabloids. For example, Waits’ lawyers are basing their claim on the precedents of Bette Midler vs. Ford Motor Co. and Woody Allen vs. Men’s World Outlet Inc. The defense, meanwhile, is citing the Vanna White vs. Samsung Electronics verdict, not to mention the Nancy Sinatra vs. Goodyear Tire doctrine.

There are some facts in the Waits case on which both sides agree:

Two years ago, Frito-Lay and its ad agency, Tracy-Locke Inc. decided on a jazzy, “tongue tickler” approach to promote its tangy new product. While preparing the ad, a Tracy-Locke copywriter listened repeatedly to the Waits song, “Step Right Up,” and even played the recording for Frito-Lay executives at a meeting where his script was approved.

Steve Carter, the singer hired to perform on the ad, turned out to be a fan of Waits who imitated Waits in his stage act. While the words of the jingle were new, ad agency executives were concerned enough about Carter’s voice to call a lawyer, who counseled caution. During the unusual trial, in which closing arguments are expected to begin today, several Waits recordings have been played for the jury and rock music writers have been called to testify about the singer-actor’s success.

But the star witness has been Waits, who told jurors that he was “angry--very angry” the first time he heard what he referred to as the “corn chip sermon.”

“Somebody had studied me a little too close,” Waits testified. “It was the equivalent of all the scars, dimples, the lines all being in the same place. . . . It was a little spooky.”

Over the years, verdicts for entertainers in imitation cases has been mixed. Woody Allen, for example, won a suit against a clothing firm that used a look-a-like in its ads. But Vanna White recently lost a case in which she claimed a robot wearing a blonde wig in a VCR commercial portrayed “attributes of her personality.”

Cases involving singing mimicry are far less common and can involve far more complex issues such as: is a singing voice a unique instrument and can a vocal style can be stolen?

In 1970, Nancy Sinatra was unsuccessful when she brought a trademark violation suit against Goodyear for hiring a look-a-like to sing, “These Boots Are Made for Walkin’.”

However, last year, Bette Midler won $400,000 in an action she brought against Ford for having used her backup singer in a car commercial to imitate her voice on the song “Do You Want to Dance.”

“To impersonate her voice is to pirate her identity,” the U.S. 9th Circuit Court of Appeals ruled. “. . . When a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs.”

Several other voice imitation cases are wending their way through the legal system. One involves the son of the late Bobby Darin who has sued McDonald’s Corp. for more than $10-million for allegedly copying his father’s singing style and gestures in its “Big Mac Tonight” commercials.

Waits’ lawyers readily acknowledge that the street-smart singer does not have a monopoly over any particular music writing or singing style. But they say that in the entire context of the ad, which ran on more than 250 radio stations nationwide, a deception was clearly committed. Corn chip company counsel Anthony Liebig counters that a verdict in favor of Waits would open up a musical Pandora’s box.

“Consider any artist, musician, or performer of any era and ponder what his oeuvre would have amounted to had he been precluded from utilizing the brush techniques, color principles, scales, meters, cadences, sounds, moods and methods--in short, the styles--of those who had gone before,” Liebig wrote in his trial brief. “ . . . Would (Elvis) Presley have been foreclosed as an imitator or would he have had the right to foreclose those who came after him?

“Indeed,” the lawyer concluded, “could there have been a Renaissance?”