In a novel case of voice theft, a Los Angeles federal court jury Tuesday awarded gravel-throated recording artist Tom Waits $2.475 million in damages from Frito-Lay Inc. and its advertising agency.
The U.S. District Court jury found that the corn chip giant unlawfully appropriated Waits’ distinctive voice, tarring his reputation by employing an impersonator to record a radio ad for a new brand of spicy Doritos corn chips.
The four-week trial was the first in which punitive damages have been awarded to a popular singer for having his image besmirched by an advertising mimic, according to lawyers on both sides. As part of the award, the jury assessed punitive damages of $500,000 against Frito-Lay and $1 million against its ad agency, Tracy-Locke Inc.
Waits’ lawyer, Howard King, had asked for a minimum of $1.5 million in damages.
Waits, who has recorded 17 albums during the last two decades but rejects all requests to do commercials, said he hopes the verdict will send a strong message to corporate America.
“Their defense was essentially that this was no big deal,” said the rough-and-tumble recording artist. ". . . Instead of this being a fly on their forehead, it is now a bee in their ear.”
“I feel like maybe we’ve made the path easier for others to follow. Now I have a fence around my larynxization,” Waits said, referring to his raspy singing style.
The case was the first to go to trial under a precedent set last year by entertainer Bette Midler, who successfully sued Ford Motor Co. for $400,000 for having used her backup singer to imitate her voice in a TV ad. Unlike Waits, Midler was awarded no punitive damages. In the Midler case, Ford used a song recorded by Midler, whereas in the Waits suit original lyrics were used in the ad.
Over the years, non-singing celebrities including Woody Allen have won cases against businesses that used look-alikes in ads.
Jurors, who listened to tapes of Waits and another deep-voiced artist, Louis Armstrong, said afterward that the Waits case was clear-cut.
“The uniqueness of Mr. Waits’ voice speaks for itself,” said data processing manager Doug Lance, 55, of Long Beach. “And the testimony spoke for itself.”
Both sides agreed on several key points:
While preparing the 1988 ad, a Tracy-Locke copywriter listened repeatedly to Waits’ tune, “Step Right Up,” and played the recording for Frito-Lay executives at a meeting where his script was approved. And when singer Steve Carter, who imitates Waits in his stage act, performed the jingle, Tracy-Locke supervisors were concerned enough about Carter’s voice that they consulted a lawyer, who counseled caution.
The commercial eventually was broadcast on more than 250 radio stations. At the trial, Waits testified that he was “angry--very angry” when he heard what he called the “corn chip sermon.” “Somebody,” he said, “had studied me a little too close.”
King, Waits’ lawyer, said the jurors’ high award showed “they were appropriately offended.”
Frito-Lay counsel Anthony Liebig termed the award “extremely generous” and said he expects to appeal.
Waits, a critics’ favorite but who has had no Top 10 recordings, said the verdict proves that an artist doesn’t need “global sales in the billions” to have legal protection.
Indeed, most of the six jurors had not heard Waits’ music before the trial. Nor did they recognize the scruffy-looking artist when they were first called into Judge James M. Ideman’s courtroom for jury selection, according to juror George Chavez.
“The first time I saw him I thought this was a criminal case and he was a criminal, and when he left the court the first time, we thought he was getting away,” said Chavez, 36, an auto sales representative from West Covina. “But now we love his music and him. . . . His music is deep.”