“Timbre and Legal Likeness: The Case of Tom Waits”
Mark C. Samples
In the fall of 1988, singer-songwriter Tom Waits did a radio show interview in Los Angeles. During a break, Waits recognized his own voice on a commercial. It was the familiar Waits baritone—rough, gravelly, and following the rising and falling contours of a beat poet in a downtown club. There it was, Tom Waits’s voice selling a new Frito-Lay product, SalsaRio Doritos. The problem was, Tom Waits had never made such a commercial.
Waits was shocked to discover that his voice had been impersonated in a commercial. Though he had made a commercial early in his career, by 1988 he had a firm policy against endorsing any product in a commercial. Furthermore, he had spoken out to fans, friends, and interviewers about this policy. When Waits heard the Doritos commercial, he was concerned that his friends would think him a hypocrite. He considered the impersonation to be good enough that “whoever was going to hear this and obviously identify the voice would also identify that I in fact had agreed to do a commercial for Doritos.” Waits sued Frito-Lay Co. and the Tracy-Locke Advertising Agency for voice misappropriation. And he won.
This essay pairs legal and branding theory to analyze Tom Waits’s case against Frito-Lay, showing it to be a rare instance in which timbral distinction of the voice is the central issue. The decision was a controversial expansion of the right of publicity, the right of a celebrity to protect the use of his or her likeness in commercials. A rodent control company cannot use Bill Murray’s picture on a billboard, a vacuum cleaner company cannot include Oprah Winfrey’s face in a magazine ad, and a potato chip company cannot impersonate Tom Waits’s voice in a radio commercial—not without the celebrities’ permission, anyway. The Waits decision equated Tom Waits’s voice with Bill Murray’s picture or Oprah Winfrey’s face. In conjunction with an important previous case from 1988, Midler v. Ford Motor Co., Waitslegally affirmed the connection between the sound of one’s voice and one’s “identity,” elevating a person’s vocal timbre to the level of his or her visual representation, for purposes of publicity and endorsement of products.
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