Funny timing as I just revisited the brilliant "Step Right Up" (and the entire Small Change album) a few days ago, and had no idea about this case. Glad Tomcat won. Can't help but see some parallels between this and current Scarlett Johansson vs. OpenAI debacle.

My very favourite line, among many, from "Step Right Up": __The large print giveth and the small print taketh away.__

Tom Waits did some advertising work when he narrated a dog food commercial [1], but I think his artistic integrity is still intact considering all he did was a voiceover (no singing). In true Tom Waits fashion, when he was asked about why he did it, his response was "I was down on my luck and I like dogs". One of the things I love about Tom Waits is that his interviews are just as entertaining as his songs.


>Tom Waits did not sue Frito-Lay for copyright infringement. At the time Waits didn't own the copyright (in the work of authorship) to the song "Step Right Up". This was, and is, owned by Fifth Floor Music Inc (controlled by Martin/ Herb, Evan Cohen). One might assume Frito-Lay did indeed obtain the "synch" license from Fifth Floor Music to use the song in the commercial. And as they were not using the song as recorded by Waits himself, they didn't have to worry about copyright in the musical work (owned by Elektra/ Asylum).

Is there any reason why Elektra/Asylum didn't license the actual recording copyright[0] to Frito-Lay? I'm assuming Tom Waits (like any other musical artist) wouldn't have veto rights over licensing the recordings, in the same way he apparently couldn't stop Fifth Floor Music from licensing the song itself to Frito-Lay.

The thing is, if Frito-Lay had actually licensed the recording, Tom Waits wouldn't have a leg to stand on in court, because of a very funny concept in copyright law called federal preemption. Any claim under any other law - state[1] or federal - that looks and quacks like a copyright is null and void. You only get to sue for copyright with copyright. So you can't, say, trademark a public domain work[2] and then sue people for reproducing it. Misappropriation, false endorsement and publicity rights are very much trademark-shaped laws, so they also lack any jurisdiction over copyright matters. There really just isn't room in the law for "I license you this work" but also "you reproducing this work is a false endorsement". The public is not confused when copyrighted works are used with permission.

However, I'm also not sure why suing for copyright infringement was off the table in the first place. The thing is, when you make a derivative work, you own what you added. If you and me both go to Disney and buy licenses to produce Avengers merch, but I decide to copy your design for the merch, you get to sue me. My license to make my own derivative version of something does not entitle me to copy other derivatives of that same work. So Frito-Lay, having a license to record their own version of Step Right Up, doesn't get the right to copy Tom Waits' recording of Step Right Up.

Who knows, maybe recording copyright is a lot narrower than other forms of copyright, but it's hard not to shake the feeling that he could have gone up against Frito-Lay for a lot more.

[0] Music copyright has two souls: the copyright over the song itself - lyrics, sheet music, and so on - and a separate copyright over a recording of a specific performance of the song. Originally you could only copyright the song and not the recording.

[1] The reason why federal preemption exists is that states started inventing their own recording copyrights for music. Which sounds absolutely wild to lawyers today, who are taught that copyright is inherently a federal question and that states have no say in how it works. What's even more wild is that some state recording copyright laws were actually perpetual, this somehow survived the "for limited times" language in the Copyright Clause, we didn't establish federal preemption and shut down these schemes until the 1970s, and we didn't extinguish already extant perpetual recording copyrights until the Music Modernization act in 2018.

[2] i.e. Disney putting Steamboat Willie in their logo

Interesting that the law suit was just against Frito Lay rather than PepsiCo.

> When I was a kid, if I saw an artist I admired doing a commercial, I'd think, "Too bad, he must really need the money." But now it's so pervasive. It's a virus. Artists are lining up to do ads. The money and exposure are too tantalizing for most artists to decline. Corporations are hoping to hijack a culture's memories for their product. They want an artist's audience, credibility, good will and all the energy the songs have gathered as well as given over the years. They suck the life and meaning from the songs and impregnate them with promises of a better life with their product.

Tom Waits did have a point that I think today's content creators need to take onboard. With music it was not always about money for everyone, the love of music was motivating enough, bringing people together for a good time.

I do not see many content creators in it 'for the content' and bringing a community together. There are definitely some but the algorithm isn't helping them.

> Eventually, artists will be going onstage like race-car drivers covered in hundreds of logos. John, stay pure. Your credibility, your integrity and your honor are things no company should be able to buy.

I wish politicians were obliged to wear suits decorated in all the logos of their sponsors.

"Two and a half million bucks. Spent it all on candy."

A true artist. Here's my favorite work of his:

“The large print giveth and the small print taketh away.” ―Tom Waits
My favorite Tom Waits story is the one when he was in a legal battle with an avante-garde French circus performer

I've seen this discussion a lot, but what about when they hire a sound-a-like voice actor for a cartoon after a popular movie?

Case in point, Owen Wilson was the voice of the main character in the Cars movie, but they got a different voice actor for some of the cartoons who sounded similar. Same thing for the ghostbuster cartoon after the movie was a big success in the 80s.

Why is that ok?

A fantastic read, but slightly different from the OpenAI debacle? It sounds like Frito-Lay got to air their commercial for the usual period. Yes, there was a small downside in that it cost them $2.5M (plus their own lawyer's fees), which I imagine was beyond their budget for Genuine 100% Certified Tom Waits, but they did at least achieve their aim.
The m3u link is broken but the recording of the "corn chip sermon" Waits was referring to is on the same site: I can see why he was upset, I'd fall for it.
"If there's one thing you can say about mankind

There's nothing kind about man

You can drive out nature with a pitch fork

But it always comes roaring back again

For want of a bird

The sky was lost

For want of a nail

A shoe was lost

For want of a life

A knife was lost

For want of a toy

A child was lost"

I like that Waits never became an entertainment industry pushover.

As an aside, anyone know if Tom Waits is still making music? It's been thirteen years since his last album, and he's at the age where I wouldn't be surprised if he's done.
> "Yeah, we nailed 'em. It was David and Goliath... They were lame. The problem with a big company like that is that its hands don't talk to its feet, and nobody knows what anyone else is doing. In this case, it was an ad agency that hired a fan of mine actually, in Texas."

Never attribute to malice what can adequately be explained by incompetence (at least, until the legal team gets involved).

But in my experience, this is how 95% of corporate controversies happen - just some guy somewhere is an idiot and no one checks their work. But as soon as lawyers are involved they will pull out the Magna Carta if they have to in order to prove that you they were actually geniuses and within their rights to screw up.

POV: Tom Waits is the reason unwashed dogs smell like Fritos. He won that concession in this lawsuit. If it were not for the generosity of Tom Waits, unwashed dogs might easily smell like worse things.
So many people flocking to defend a corporation based on bad audio samples and ignorance of first-hand reports. This whole OpenAI/SJ issue can be solved in the courts. The people saying "it does not sound like her at all" just sound rediculous and the entire thing just reminds me that HN isn't some place "better than the rest of the internet." It just has more people that think because they are smart in one area it applies to everything else.
Tom Waits is the ultimate artist. He is also quite intelligent and hilarious. I always liked his appearances on Letterman.
A little off topic, but for anyone who hasn't seen this live performance of Step Right Up, I highly recommend it:
I'm glad he got paid. It was done in bad faith (much like the ScarJo case). He does allow for covers — Rod Stewart's Downtown Train cover paid for his swimming pool.
Read the whole thing in his voice with Going out West playing in the background. What a true boss.
i met waits briefly in a bar in occidental california during late 1990s. he was behind the piano, playing away. looked healthier than i expected.
OpenAI should have chosen Gilbert Gottfried for its voice.
We all read these things and are moved, but we do nothing. Let's do something.
> <object ... </object>

Oops. I hope they get that fixed. I love Tom Waits.

The actual Sky voice actor was interviewed and, surprise, she sounds way more like the OpenAI voice than Scarlett.

That said, this is certainly a problem we will see in the future.

This is a good example of the case Scarlett Johansson has against OpenAI
Too bad there's no "Stephen Carter" to provide testimony for imitating ScarJo. It's amusing to think of an AI giving testimony in lawsuit, though.

eta: all the folks saying the voice actor doesn't sound exactly like ScarJo and was hired before the negotiations with ScarJo are neglecting to remember: AI is really good at making voice imitations from snippets. So Sky's voice is almost certainly not unprocessed voice acting. That's how the There I Ruined It guy does his covers.

TLDR; AI summary: ScarJo is eating too many Cheetos
”Killers, thieves, and lawyers”
I think if SJ went to court and won (though I doubt it'd ever get that far), the precedent would be downright dooming for the entire VA industry. If your voice sounded close to any other major VA, no one would touch you for fear of their liability going through the roof.

It probably could be stretched to musicians as well. Maybe lookalike actors too if we go down that route.

I just can't imagine it'd be a good thing to have your voice be owned by someone else just because they became famous first.

Ahhh the good old days before Frito Lay murdered people who were about to win lawsuits against them.
There is a very strong music copyright system in the US and in the Tom Waits case they had both music and voice impersonation. In Sky situation a person who sounds similar to Scarlet also sounds similar to some % of humanity as well. But no creative work of Scarlet was infringed upon. You can’t protect just a voice. People are born with it and if that was possible, many people on TikTok would liable for sounding like some celebrity. Being a celebrity doesn’t entitle you to a share of income from anyone who sounds like you and broadcasts.