Step Right Up to Learn a Horror Story of a Violation of the Right of Publicity

Now let’s step right up to learn a horror story of a violation of the right of publicity. The right of publicity is why, for instance, Tom Waits successfully sued Frito-Lay and its advertising agency Tracy-Locke, Inc., for using a singer whose voice sounded exactly like his in a commercial for SalsaRio Doritos and with music that strongly evoked Waits’ “Step Right Up,” perhaps one of his best known songs. Waits famously refused to do any endorsements and spoke out against celebrity endorsements, saying they cheapened their image.

Frito-Lay and the advertising agency hired Steven Carter, a musician known for his spot-on Waits impersonation, to do the singing. The musical director for the ad even suggested the singer was too spot on and that could land them in legal trouble, but he was unwisely overruled. Waits sued and won $375,000 in compensatory damages and an extra $2 million in punitive damages, which are damages meant to punish the loser for bad behavior.

The appellate judges noted that this kind of unlawful violation of the right of publicity is really an invasion of personal rights, and they quoted a previous decision involving Bette Midler against Ford Motor Company saying, “What is put forward as protectable here is more personal than any work of authorship. A voice is as distinctive and personal as a face.”

It’s worth noting that the court rejected the argument that if the person whose identity is misappropriated isn’t well known enough, then the misappropriation didn’t really matter.

The kicker is that the appellate court noted that in “Step Right Up,” “Waits characterizes the song as an indictment of advertising. It ends with the line, ‘What the large print giveth, the small print taketh away.'”