CRAFT: THE CREATIVE ISSUE; Tom Waits copyright dispute has lessons for every agency

BBH covered itself when it used a Tom Waits song for Levi’s, Mairi Clark explains

BBH covered itself when it used a Tom Waits song for Levi’s, Mairi Clark

explains



Three years ago, Screaming Jay Hawkin’s version of the Tom Waits track,

Heartattack and Vine, was used in Bartle Bogle Hegarty’s Levi’s

commercial, ‘procession’, which depicted a New Orleans funeral

procession.



Another of Waits’ songs, Ruby’s Arms, was used in a French campaign for

William’s Gel.



In 1994, the singer-songwriter successfully sued Third Story Music,

which owns the rights to some of his music, for allowing his songs to be

used without his consent.



A US court ordered the company to ‘disgorge all monies received by the

use of Waits’ compositions in commercials.’ He was also awarded dollars

20,000 for the ‘distress and embarrassment’ caused.



Earlier this month, following an unsuccessful appeal by Third Story

Music - which is, incidentally, run by Waits’s former manager, Herb

Cohen - the California Court of Appeal re-affirmed its decision. But,

despite refusing the appeal, it withdrew the dollars 20,000 damages

payment, saying the amount was ‘inappropriate’.



Waits was managed by Herb Cohen for most of the 70s and, in an

intriguing contract, he signed over all the publishing rights to music

recorded under Cohen’s management to Third Story Music. After they

parted company in the early 80s, all subsequent publishing rights were

managed solely by Warner Chappell. Consequently, no music from the early

80s has been used in commercials.



Waits has strong opinions on why he dislikes his music being used: ‘An

artist has the right to have his or her work presented as intended, and

not ruthlessly cannibalised. The licensing of a song for a commercial

against the wishes of the artist reduces it to a meaningless jingle,

where it becomes fused with the product and its image.’



Waits has had a tumultuous relationship with the advertising industry.

In 1988, he was awarded dollars 2.5 million from the Dallas-based Tracy-

Locke agency after it used a Waits impersonator to mimic his voice in a

Frito Lay corn-chips ad. The remarkable thing about the lawsuit was that

the singer wasn’t singing a Waits song, merely one that was played in

his signature style.



In the Levi’s case, BBH was not at fault. The copyright was cleared with

Warner Chappell well before the ad was presented. Waits only discovered

that the track had been used from his PR agency.



In a worse case scenario, BBH could have been sued and the ad pulled, if

it not had the foresight to insist that a paragraph be removed from the

contract that would have left it vulnerable had there been a problem.



Anthony Price, the company secretary at BBH, remembers being cautious:

‘We knew all about the previous problems Waits’ songs had had, so we

took precautions. Waits was an incredibly difficult man to get hold of.

After we heard what had happened from his PR, we tried to get in touch,

but even his PR didn’t know where he was. I’m satisfied we were as

thorough as we could have been.’



Philippa Crane produced Levi’s ‘procession’ ad and was responsible for

choosing the music: ‘I heard the Waits track somewhere - I can’t

remember where - and it just fitted. We listened to hundreds of tunes,

but kept coming back to that one.’



She also insists that the agency was never in the wrong: ‘We’ve cleared

hundreds of tracks for commercials. Hundreds. You’re not going to put a

piece of music on to a commercial if you know that there might be a

problem.’



As for the future, things will get more difficult for agencies. As more

re-mixes and sampled tracks come into circulation, permission will have

to be obtained from every artist sampled.



Price comments: ‘Say you’ve got a Massive Attack cover-version that

samples four or five tracks from everyone from Sting to Queen - you have

to clear each one. It’s never the differences that the law looks at,

just the similarities. Even using specially composed music is a

minefield. You can never guarantee that it doesn’t infringe copyright

and it’s impossible to find out if the music is similar to someone

else’s.’



He continues: ‘The law has very carefully defined doors to go through

and these need to be followed precisely. If the case of Waits had not

come up, we may have decided we were being too thorough in the way we

cleared copyright. When something like this happens, it makes you glad

that you were cautious.’



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