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Waits v. Frito-Lay, Inc.

United States Court of Appeals for the Ninth Circuit
978 F.2d 1093 (9th Cir. 1992)


Tom Waits (plaintiff) was an acclaimed singer with a distinctively low, gravelly voice. Waits recorded and toured extensively. In interviews, Waits frequently shared his opinion that product endorsements and commercials compromise a musician’s artistic integrity. Consistent with his expressed views, Waits turned down many lucrative endorsements. Frito-Lay, Inc. (Frito-Lay) (defendant) was a large food manufacturer and distributor. To launch a new flavor of corn chips called SalsaRio Doritos, Frito-Lay hired Tracy-Locke, Inc. (Tracey-Locke) (defendant), an advertising agency. As part of the marketing for SalsaRio Doritos, Tracy-Locke modeled a jingle after a song by Waits called “Step Right Up,” mimicking the original song’s rhyme and word play. Tracy-Locke hired Stephen Carter, a professional musician who had spent years covering songs by Waits, to record the jingle. Carter’s impersonation of Waits was almost indistinguishable from the real singer’s voice. The ad aired on over 250 radio stations across the United States. Waits sued Frito-Lay and Tracy-Locke, alleging: (1) voice misappropriation in violation of his right of publicity under California state law and (2) false endorsement under the Lanham Act. At trial, Waits presented his vocal recordings to compare with the ad’s sound. Additionally, several witnesses testified that they believed Waits was the singer in the ad. The jury found for Waits, awarding him: (1) $375,000 in compensatory damages and $2 million in punitive damages for voice misappropriation, and (2) $100,000 in damages for the Lanham Act violation. The defendants appealed, arguing, among other things, that: (1) Waits lacked standing to sue under the Lanham Act because he was not directly competing with the defendants, and (2) the Lanham Act claim failed on its merits because the ad did not represent that Waits endorsed SalsaRio Doritos.

Rule of Law


Holding and Reasoning (Boochever, J.)

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