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
> 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.
A true artist. Here's my favorite work of his: https://www.youtube.com/watch?v=Psk3rmjonQA
https://www.theguardian.com/music/2016/oct/08/tom-waits-angr...
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?
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.
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.
Oops. I hope they get that fixed. I love Tom Waits.
That said, this is certainly a problem we will see in the future.
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.
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.
My very favourite line, among many, from "Step Right Up": __The large print giveth and the small print taketh away.__