Tom Waits and Imitation in Advertising

A couple of days ago I examined the “Blurred Lines” decision, potentially allowing lawsuits against artists who acknowledge and transmit their influences ‘too much.’ I find this precedent dangerous, but it also got me thinking about the line between influence and intentional mimicry. There are many examples of music made to sound just like another artist purely to capitalize on the identity or success of that artist. The advertising world can be especially naughty in this practice. Recently, Eminem won a case against a New Zealand agency that used an intentional copy of “Lose Yourself” in a political advert. Licensed from a music library (which is a whole other topic), the soundalike track was even titled “Eminem Esque.” There’s no question of the intention there.

Tom Waits has a particularly tough time with imitation. I suppose it’s the price to pay for being such a distinctive, one-of-a-kind figure. Today I Found Out just released a video on Waits’ battles with advertisers and, though I’ve followed the Fritolay fracas, there’s a bit in here I didn’t know. I didn’t realize Fritolay had the nerve to have the soundalike sing a Tom Waits song in the ad (I am assuming Waits had an approval clause in his contract that didn’t allow his label to license the original recording outright). And, even more curious, I didn’t know that, despite Waits’ high profile victory over Fritolay, agencies continued to mimic his voice in ads, creating a legal whack-a-mole for the frustrated singer.

I admit that I don’t understand Tom Waits’ lawsuit over his songs being used in a horse circus, as mentioned near the end of the video. A ’horse circus’ sounds like the most Tom Waits thing ever. There must be something more to that. A compulsory public performance license should allow any of his songs to play in the venue, right? My guess is it was more about how the show was promoted, with an implication of Waits’ endorsement or involvement, rather than the actual musical content.

I’m also thinking about artists that refuse to have their music used in advertising. It’s amusing to explain to younger songwriters that there was a time — not that long ago! — when it seemed the majority of artists wouldn’t allow their songs used in ads. Mindsets have certainly changed, and you’ll get no judgment from me as far where you might lean. But there is something admirable about Waits’ position, though he’s able to earn income from a revered catalog and multiple vocations. I know the Beastie Boys are advertising hold-outs, too (and have had their own headaches for holding this line). Who else is left? And except for that handful of idealistic punk rockers, are there any newer artists or not established (i.e., well-to-do) artists that are also non-starters with advertising music?