Friday, September 16, 2005

the sincerest form of lawsuit

what kind of world would we live in if celebrities, artists, and (inevitably) massive multinationals could silence anyone who jocked their style, or anyone who sounds kind of like them?

it sounds like a scary world to me. but apparently that's the kind of world tom waits wants to live in.

The 55-year-old singer, whose distinct, gravelly voice has won him two Grammy Awards, filed the civil lawsuit this week with a state court in Frankfurt, listing Adam Opel AG and the advertising firm McCann Erickson as the defendants.

Andreas Schumacher, Waits' German lawyer, said the singer was approached numerous times about doing the ads last year, but declined, citing a policy of not doing commercials. He said the firm then hired a soundalike and the ads aired earlier this year in Sweden, Finland, Denmark and Norway.

on one level, i can sympathize with tom, who simply doesn't want to have his music used in advertisements. i can definitely relate to that:

"Apparently the highest compliment our culture grants artists nowadays is to be in an ad -- ideally naked and purring on the hood of a new car. I have adamantly and repeatedly refused this dubious honor," Waits said in a statement. "While the court can't make me active in radio, I am asking it to make me radioactive to advertisers."

in the sense of making him "radioactive to advertisers", it might be a smart strategy. if advertisers think they'll be sued anytime they use music that sounds remotely like tom waits, many of them will probably stop trying to use music that sounds like tom waits. so on that one level, taken in a vacuum, it's a good idea. once these associations are made in people's minds, they're impossible to undo: every time i hear bob seger's "like a rock", i think of chevy trucks, just like every time i hear stealers wheel's "stuck in the middle with you", i think of torturing cops and cutting their ears off. i just can't help it.

you can see the ad in question on this site, which also points out that this isn't the first time tom has sued someone for using either his music or a "soundalike" in an ad. but the site doesn't mention the most important information related to that: did he win those cases? did he settle them? did he win some, lose some? for that, we must turn to wikipedia:

The first lawsuit was filed in 1988 against Frito Lay, and resulted in a US$2.6 million judgement in Waits' favor. Frito Lay had approached Waits to use one of his songs in an advertisement. Waits declined the offer, and Frito Lay hired a Waits soundalike to sing a jingle similar to Small Change's "Step Right Up," which is, ironically, a song Waits has called "an indictment of advertising." [4] ("Step Right Up" concludes with the lyric "The large print giveth, and the small print taketh away").

In 1993, Levi's used Screamin' Jay Hawkins's version of Waits's "Heartattack and Vine" in a commercial. Waits sued, and Levi's agreed to cease all use of the song, and offered a full page apology in Billboard Magazine. [5]

In 2000, Waits found himself in a situation similar to his earlier one with Frito-Lay: Audi approached him, asking to use "Innocent When You Dream" (from Frank's Wild Years) for a commercial broadcast in Spain. Waits declined, but the commercial ultimately featured music very similar to Waits' song. Waits undertook legal action, and a Spanish court recognized there had been a violation of Waits' moral rights, in addition to the infringement of copyright [6]. The production company, Tandem Campany Guasch, was ordered to pay compensation to Waits through his Spanish publisher.

okay, so in the levi's case, he clearly had the legal high ground as the songwriter and hence the owner of the copyright. but can you imagine what would happen if every artist acted like tom and indiscriminately sued others for style-jocking?

if david coverdale's career never got off the ground because he sounded too much like robert plant? if n*sync and the backstreet boys had been sued out of existence because they sounded too much like NKOTB? if there were only one band whose vocalist sounded like creed instead of thousands of such bands? okay, those are examples where arguably the world would be a better place. but hip-hop would've died by the mid-'90s, since in that era every MC accused every other MC of either "jockin' my style" or "bitin' my rhymes". and how many thousands of artists completely ripped off the kraftwerk sound?

if even a stylistic resemblance were enough to win a lawsuit (and apparently it is), and if artists took advantage of that with any regularity, our culture would come to a halt. because every artist appropriates something from someone. i use samples, which puts me square in an area of deep gray. but even artists who would never use a sample appropriate, even if they don't realize it. they take a bassline, or a vocal melody, or a playing style, or a singing style. maybe they just take inspiration. but they take it nonetheless.

there's an quote that goes "good artists copy; great artists steal." this quote has been attributed to every artist ever, from picasso to henry rollins. you just aren't a great artist if you haven't stolen that quote and used it as your own. so who has tom waits appropriated from?

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