Copyright: Waits V. Audi

"Now they understand the words to the song better," says Waits.
"It wasn't 'Innocent When You Scheme' it was 'Innocent When You Dream.'"

In 2000, Audi-Spain (Volkswagen-Audi Espana: VAE SA) screened an Audi-A4 television commercial featuring music very similar to Waits' "Innocent When You Dream". The company had originally requested use of the song but Waits refused. In 2001 the commercial, by production company Tandem Campmany Guasch DDB SA⁽¹⁾, was awarded the Grand Prix of the Ibero-American Advertising Festival⁽²⁾. The music sounds like a modified version of "Innocent When You Dream", and the unidentified English singer certainly does his best to impersonate Waits's voice. It's actually a pretty good song.

Apparently Waits only became aware of the commercial in 2003. Waits took legal steps against Audi-Spain and its production company, claiming "copyright infringement and violation of moral rights". The production company was ordered to pay compensation to Waits through his Spanish publisher⁽³⁾ for violation of copyright.

Tom Waits Wins Spanish Legal Judgement⁽⁴⁾

Tom Waits has won the opening stages of a legal battle against a Spanish production company that adapted his music and impersonated his voice for a television commercial - even despite Waits' refusal to allow his original version of the song, Innocent When You Dream, to be used for the advertisement.

A court in Barcelona has ordered the company, Tandem Campmany Guasch, to pay compensation to Waits' publisher in Spain, Hans Kusters Music, for violation of copyright.

The commercial, for Audi cars, was screened in Spain in 2000. As well as having the same structure as Innocent When You Dream, the commercial's music was also performed in a Tom Waits style. The favourable court judgement thus recognises there has been a violation of Waits' moral rights in addition to the infringement of copyright.

Volkswagen-Audi Espana (VAESA), originally a defendant in the action brought by Waits, was cleared by the court.

Tom Waits first learned about the commercial from Spanish fans posting on various websites. Many believed it was Waits singing his own song on the commercial, even despite the fact he has always been adamant that his music will never be used for advertising purposes. Indeed, Waits rejected Tandem Campmany Guasch's original approach to use Innocent When You Dream.

The action against Tandem Campmany Guasch - a groundbreaking copyright judgement for the Spanish courts - is the latest in a line of successful legal actions Waits has taken to prevent his music and image from being associated with commercial products.

It is hard to believe that the people from Tandem Campmany Guasch actually thought they could get away with this. Waits's stand on commercial use of his songs is known throughout the business. Everybody in advertising knows (or should know) the "Waits vs. Frito- Lay" case. They even made sure to pick a post-Asylum song of which the copyright is controlled by Waits himself (and not by the Cohens/ Manifesto). It certainly looks like Tandem Campmany Guasch/ Audi had hoped for a battle in court in 2000 (and all the publicity with it). But Waits had all the time.

Tom Waits Wins Landmark Spanish Legal Judgement⁽⁵⁾

SAN FRANCISCO -- Tom Waits has won a landmark legal victory in Spain, establishing his moral rights in a case brought against car manufacturer Volkswagen-Audi (VAESA) and a Spanish production company for adapting one of Waits' songs and impersonating his voice in a television commercial. It is the first time that such moral rights -- protecting the personality and reputation of writers and authors -- have been established in a Spanish court, acknowledging an artist's voice as his creative work.

The judgement, rendered by the Appeal Court of Barcelona, also recognized that VAESA and the production company, Tandem Company Guasch, had infringed the Intellectual Property Rights of both Waits and Hans Kusters Music, Waits' music publisher in Spain. The commercial, for Audi cars, was originally screened in Spain in 2000. As well as having much the same melodic structure as the Tom Waits' song 'Innocent When You Dream', the commercial's music was arranged like the song and featured a Tom Waits' vocal impersonation. At the time of making the commercial Tandem Campany Guasch had sought permission to use Waits' original version of 'Innocent When You Dream,' a request he rejected. "Now they understand the words to the song better," says Waits. "It wasn't 'Innocent When You Scheme' it was 'Innocent When You Dream.'"

Waits and Hans Kusters Music won an initial court judgement in March 2004. The case then went to the Appeal Court, ultimately resulting in this month's groundbreaking legal victory. The Court awarded damages of 36,000 Euros for copyright infringement and 30,000 Euros for the violation of Waits' moral rights. Tom Waits first learned about the commercial from fans when visiting Spain in the summer of 2000. Many believed it was Waits singing his own song on the commercial, even despite the fact he has always been adamant that his music will never be used for advertising purposes.

The judgement is the latest in a line of successful legal actions Waits has taken to prevent his music and image from being associated with commercial products. He has most recently filed suit against General Motors' Opel and the advertising agency McCann Erickson in Frankfurt, Germany, for producing and broadcasting a series of car commercials that used a perfect impersonation of Waits' singing voice. The commercials were produced in Germany and aired in Sweden, Finland, Denmark and Norway during the late winter and early spring of last year. Among other claims, the suit charges the defendants with violating Waits' moral rights under German law.

Tom Waits Is Breaking New Legal Ground⁽⁶⁾

Tom Waits sounded exhausted. "There are things I would rather be doing," he sighed in a phone interview Wednesday night.

Waits has won wide acclaim and a cult following for his ballads of gutter characters and doomed lovers, sung in a distinctive sandpaper baritone. But that style has attracted imitators over the years, particularly in the advertising world, and Waits has established a laborious side business protecting his musical identity.

Sixteen years ago, he won an influential case against Frito-Lay over a vocal sound-alike in a Doritos commercial, and he has pursued imitators ever since. Last Friday, Waits was awarded damages in a case against Audi for a commercial in Spain using music that was similar to his song "Innocent When You Dream," sung in a voice like his. Another lawsuit is pending in Germany against the Opel division of General Motors, this one for a version of the Brahms "Lullaby" performed in what he calls a suspiciously Waitsian voice.

"It does take a tremendous amount of time, energy and money" to pursue these cases, Waits said from his home in Northern California. ``But in a way," he added, "you're building a road that other people will drive on. I have a moral right to my voice. It's like property - there's a fence around it, in a way.''

"It's part of an artist's odyssey," he said, "discovering your own voice and struggling to find the combination of qualities that makes you unique. It's kind of like your face, your identity. Now I've got these unscrupulous doppelgangers out there - my evil twin who is undermining every move I make.''

The Frito-Lay case won him $2.5 million. The Spanish case was decided by an appeals court in Barcelona on Nov. 17, and damages were awarded last Friday. Waits is to receive $43,000 for copyright infringement and an additional $36,000 for violation of his "moral rights" as an artist.

In both cases, Waits said, the agencies had first approached him to perform and then, when he turned them down, hired imitators.

Ricardo Perez-Solero, a lawyer for Tandem, which produced the Audi commercial, said the company had hired a singer named Jose Maria Martin to write and record an original song that would sound like Waits, but did not believe Waits's rights were violated.

"We acted in complete and absolute good faith," he said.

Opel, in a statement last April when Waits first complained about its commercial, said it had never asked him about it or considered his voice as a model. But documents provided to The New York Times by Waits show that his publishing company was approached by an Amsterdam agency in late 2004 with an offer for the Opel commercial and declined it.

Opel reps did not respond to a request for comment yesterday.

with files from Dale Fuchs in Madrid

Notes:

⁽¹⁾ Tandem Campmany Guasch DDB SA. Enric Granados, 86 88 BJ - 08008 Barcelona/ Spain
⁽²⁾ Entitled "Dreams". Director: Nacho Gay�n. Creative Director: Dani Ilario, Alberto Astorga. Art Director: Dani Ilario, Fernando Codina. Producer: Vicky Moino
⁽³⁾ Hans Kusters Music. Broekstrraat 10, 1730 Kobbegem/ Belgium
⁽⁴⁾ Source: PR/ Newswire/ Starkult Promotion (Germany). March 2, 2004
⁽⁵⁾ Source: PR/ Newswire. January 19, 2006
⁽⁶⁾ Source: New York Times by Ben Sisario, January 20, 2006