Tom Waits, the singer and composer who won a lawsuit over the
unauthorised use of one his songs in a 1993 Levi’s commercial, has
finally had his victory upheld by the California Court of Appeal.
Waits successfully sued the publishing company, Third Story Music, in
1994 over its decision to allow Levi’s and its UK agency, Bartle Bogle
Hegarty, to use the track, Heartattack and Vine, without seeking his
The ad, depicting a New Orleans funeral procession, used a cover version
of the song recorded by Screamin’ Jay Hawkins.
At one point, it was feared that Levi’s and BBH might also be the
subject of writs and that the commercial would be prevented from running
in some countries. However, Waits’s dispute was confined to Third Story,
a company run by his former manager, Herb Cohen.
The Court of Appeal reaffirmed the original ruling that Waits’s personal
consent was required for any commercial use of his compositions.
The judgment required Third Story to ‘disgorge all monies received by
the use of Waits’s compositions in commercials’.
If BBH had been sued, it would have had indemnity because of the
contract it signed with the song’s UK licence holder, Warner Chapple.
The agency had insisted on striking out a clause which would have
limited the publisher’s responsibility and made the agency liable for
Waits, who has always refused to allow his work to be used in ads,
commented: ‘It has always been my belief that anything which degrades
the value of the work in turn degrades the artist.’