WHY I CLOSED THESE COMMENTS
I should have explained my reason for closing the comments on this post; apologies. Generally, when a reader insists ad nauseum on pushing their opinion (via comments and private emails) without really engaging the responses to their comments, it makes sense to bail rather than to indulge the reader further. If you are going to take issue with a post, you have to engage me, otherwise you're just annoying and taking up my time. In this case, Dave made his opinions clear, and then sidestepped my objections to his naive characterization of the "ultimate goal" of fair use (for a start). To clarify my own perspective, here is the sentiment expressed by Tom Waits that I specifically object to:
"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."
This concept of "Moral Rights" is more prevalent in Europe, and happily is not part of US copyright law per se, where fair use really is the issue and problem at hand; for more info on the concept , look here or here (scroll down).
In case it isn't obvious, I find Mr. Waits' proprietary attitude to be particularly bizarre and objectionable. And I will be sure not to ever buy his music. Ever.
Still Fighting for the Right to His Voice
By BEN SISARIO
Published: January 20, 2006
Tom Waits sounded exhausted. "There are things I would rather be doing," he sighed in a telephone interview Wednesday night.
Mr. 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 Mr. 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 Mr. Waits was awarded damages in a case against the Audi division of Volkswagen 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, Mr. 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."
At a time when musicians are increasingly open to licensing their music for advertising, television and other commercial uses, Mr. Waits has steadily built a reputation not only for refusing to license his music, but also for aggressively defending his style as a unique legal property.
"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 doppelgängers 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. Mr. Waits is to receive $43,000 for copyright infringement and an additional $36,000 for violation of his "moral rights" as an artist.
The court ruled that both Audi and the studio that produced the commercial, Tandem CampMany Guasch in Barcelona, are responsible for the damages.
Jeffrey M. Liebenson, a partner at the law firm Katten Muchin Rosenman in New York who specializes in music copyright, said Mr. Waits's suits were having a significant effect on the law in the United States and, now, Europe.
"When something like this happens which he finds to be particularly objectionable," Mr. Liebenson said, referring to the Audi and Opel advertisements, "he's willing to be engaged in an effort to assert his rights, and in doing so he has helped clarify the law in two key jurisdictions."
In both cases, Mr. Waits said, the agencies had first approached him to perform and then, when he turned them down, hired imitators. [full article]