Tom Waits v. Doritos: Vocal Identity, Misappropriation, and Lessons for Uganda's Intellectual Property Regulatory Framework.

Edgar Okitoi
Jun 2
9 min read

By EDGAR OKITOI*

The relationship between artistic identity and commercial interests lies at the heart of intellectual property law. Nowhere is this more apparent than in disputes where an artist’s unique persona, especially their voice, is used without consent to promote products.

The landmark case of Tom Waits v. Frito-Lay (Doritos)[1] in the United States sets a legal precedent for the protection of vocal identity, establishing that a distinctive voice is not only a personal hallmark but also a protectable legal interest.

1.0 THE TOM WAITS V. DORITOS DISPUTE

Tom Waits, a celebrated American singer & songwriter, is famous for his gravelly, instantly recognisable voice and his staunch refusal to license his music or persona for commercial advertising.

In 1988, Frito-Lay, the manufacturer of Doritos chips, launched a radio campaign for its SalsaRio Doritos. The campaign featured a jingle closely modelled on Waits’ song “Step Right Up” performed by a professional Waits impersonator. The ad not only mimicked Waits’ vocal timbre but also his phrasing and style, making it nearly indistinguishable from the real artist’s style.

Waits had previously been approached by Frito Lay to record the ad himself but declined, consistent with his anti-commercial stance. Undeterred, the company hired an impersonator specifically to evoke Waits’ persona. The ad aired on more than 250 radio stations across the U.S, targeting an audience that overlapped with Waits’ fan base.

2.0 LEGAL CLAIMS

Waits sued Frito-Lay and its advertising agency, Tracy Locke, on two main grounds:

The first being Voice Misappropriation or the Right of Publicity, wherein Waits alleged that the unauthorised commercial use of a vocal imitation violated his right to control the commercial exploitation of his distinctive voice under California law.
Secondly, False Endorsement under the American Lanham Act[2], where he further claimed that the ad falsely suggested he endorsed Doritos, constituting a violation of Section 43(a) of the Lanham Act, which prohibits false or misleading representations in advertising

3.0 THE TRIAL AND VERDICT

The evidence presented included recordings of Waits’ actual voice and the Doritos jingle, testimony from listeners and music experts who believed the ad featured Waits himself, and evidence that Frito-Lay and its agency were aware of Waits’ refusal to do commercials and intentionally sought to mimic his voice.

The jury found in Waits’ favour, awarding him compensatory and punitive damages for voice misappropriation and the Lanham Act violation. The verdict was affirmed on appeal, with the court emphasising the malicious intent and conscious disregard for Waits’ rights by the defendants.

The court recognised that a distinctive voice, like a name or likeness, is a core aspect of personal identity and can be legally protected from unauthorised commercial exploitation. This extended the right of publicity beyond mere visual likeness to include vocal timbre and style.

Drawing on the precedent set in Midler v. Ford Motor Co.[3], The court held that deliberately imitating a celebrity’s voice for commercial purposes constitutes tortious misappropriation under California law. The uniqueness and recognisability of Waits’ voice were central to this finding.

The jury also found that the ad’s use of a Waits impersonator was likely to cause consumer confusion as to Waits’ endorsement of Doritos, thus violating Section 43(a) of the Lanham Act. Actual evidence of consumer confusion bolstered this claim.

Furthermore, the court found that Frito-Lay and its agency acted with malice, knowingly disregarding Waits’ rights and his public stance against commercial endorsements. This justified the award of punitive damages.

Finally, the court acknowledged that unauthorised commercial use of an artist’s persona can harm their artistic integrity and reputation, even absent direct financial loss.

4.0 THE CONTEXT AND BROADER IMPLICATIONS

The Waits case has become a touchstone in U.S. law for several reasons. For one, it confirmed that the right of publicity includes not just names and images but also distinctive voices. The case contributed to the growing recognition of sound and voice as potential trademarks or “sound marks.” It also clarified the application of the Lanham Act to cases involving vocal impersonation and false endorsement. With the advent of AI, deep fakes, and synthetic voice technology, the principles from Waits v. Doritos are more relevant than ever.

5.0 UGANDAN INTELLECTUAL PROPERTY LAW: FRAMEWORK AND GAPS

Uganda’s copyright law, governed by the Copyright and Neighbouring Rights Act Cap 222, protects original literary, artistic, musical, and dramatic works, including sound recordings and performances. Performers are granted certain rights over their recorded performances, but the law does not explicitly protect the unique qualities of a performer’s voice as a personal attribute.

Uganda does not have explicit legislation recognising the right of publicity or personality rights. The Constitution does provide for privacy and dignity, but does not specifically address commercial exploitation of identity. Common law torts such as defamation or passing off may offer limited remedies.

Angella Katatumba v. ACCU[4]

In 2014, Ugandan singer Angella Katatumba sued the Anti-Corruption Coalition Uganda (ACCU) for using her song “Let’s Go Green” in a jingle for an environmental campaign without her consent. ACCU argued that the use was employed for or used for public interest and should therefore pass the test to be considered as fair use.

The good Judge Christopher Madrama Izama of High Court as he was them, found in favour of Katatumba, holding that the unauthorised use of her song in a commercial context constituted infringement; he further emphasised that the defendant’s benefit was not limited to financial gain but also included reputational and campaign advantages thus affirming the exclusive rights of artists over their musical works and recognised the harm to artistic integrity and reputation from unauthorised use.

However, the judgment was rooted in copyright infringement, not in the protection of personal identity or vocal timbre, which makes it distinguishable on both fact and law from Waits v Doritos.

Winnie Asege v. Opportunity Bank[5]

Winnie Asege, a Ugandan entrepreneur, sued Opportunity Bank for seeing an opportunity to use her image in an advertisement without her consent. The bank had used her likeness in a campaign to promote its services.

The Hon. Justice Dr. Henry Peter Adonyo found in favour of Asege, awarding damages for the unauthorised use of her likeness. The ruling recognised the right to control the use of their image in commercial contexts and also not to use it in public at all as a show of endorsement.

The case relied on copyright law and principles of passing off with a mention of Publicity and or personality rights. The court recognised the harm caused by unauthorised commercial exploitation of a person’s identity. However, as with Katatumba’s case, the judgment did not explicitly address the voice misappropriation.

This is a mere illustration of how unexplored the area is in Uganda; the lack of an authority addressing it head-on creates a gray area and leaves advocates or lawyers unable to adequately advise clients on potential ways of protecting their identities and likeness.

When comparing the U.S. approach in Waits v. Doritos, with Ugandan cases, several distinctions emerge for example in the U.S., the right of publicity is explicitly recognised and includes voice as a protectable personal attribute. Sound marks are recognised under trademark law, and false endorsement protections under the Lanham Act are robust. Judicial remedies include damages for misappropriation and false endorsement, and artistic integrity is explicitly acknowledged.

In Uganda, on the other hand, the right of publicity is not recognised except with little mention in case law, particularly Winnie Asege v Opportunity Bank,[6], and voice is not specifically protected as a personal identity attribute. Protection against false endorsement is limited, often relying on passing off.

Copyright protection applies to works but not vocal timbre, and damages are typically awarded for copyright infringement. Artistic integrity is recognised mainly in the context of copyright essentially requiring a thorough test for copyrightable material.

The rise of artificial intelligence has dramatically transformed the landscape of voice imitation, making it possible to create highly realistic digital replicas of an individual’s voice, often without their knowledge or consent for example the Late Ugandan Artist, Moze Radio of GOODLYFE Music, there have been allegations of AI voice imitation of his likeness and vocal timbre.

Unlike traditional impersonation, which relies on human skill, AI voice cloning leverages deep learning algorithms trained on audio samples to synthesiae speech that is virtually indistinguishable from the original. This technology has rapidly become accessible and is now used in everything from entertainment to fraud, raising urgent questions about legal protections for vocal identity.[7]

The Tom Waits v. Doritos case is more relevant than ever in the age of AI because just as Waits’ unique voice was imitated for commercial gain, today’s artists face the risk of their voices being cloned and used in advertisements, music, or even misinformation campaigns and perhaps sometimes at a massive scale and with global reach.

Recent legal disputes, such as the landmark Arijit Singh v. Codible Ventures LLP[8] case in India and China’s first AI voice infringement ruling, have established that a person’s voice, when identifiable and used without consent, can violate personality rights even if the use is enabled by AI. Courts in these cases have emphasised that the voice is a key component of personal identity and that AI-generated imitations can cause both economic and reputational harm.

In the United States, while federal copyright law does not protect a person’s voice, some state privacy and biometric laws are being tested against unauthorised AI voice cloning. For example, the Illinois Biometric Information Privacy Act[9] has been cited as a possible avenue for legal recourse, provided the AI-generated voice is unique and identifiable as belonging to a specific individual. However, legal frameworks remain fragmented and often lag behind technological capabilities, leaving many victims of AI voice cloning with limited remedies.

For Uganda, the implications are significant. The current legal framework, as seen in cases like Angella Katatumba v. ACCU and Winnie Asege v. Opportunity Bank, relies on copyright and passing off to address unauthorised use of artistic works and likenesses. These tools, however, are not well suited to the challenges posed by AI, where a voice can be cloned without copying a specific recording or song. Without explicit personality rights or statutory protection for vocal identity, Ugandan artists are particularly vulnerable to exploitation by AI technologies, i.e., whether for commercial, entertainment, or fraudulent purposes.

As AI voice cloning becomes more prevalent, the issues raised in Waits v. Doritos, i.e., consent, identity, reputation, and economic harm are magnified. The global trend, as seen in India and China, is toward recognising and protecting the unique qualities of a person’s voice as part of their personality rights, requiring express consent for any AI based commercial use. For Uganda, aligning with these developments will be critical to safeguarding artists and the broader public from the risks and abuses of AI-driven voice imitation.[10]

6.0 WHAT IF WAITS V. DORITOS HAPPENED IN UGANDA?

If a Ugandan artist with a distinctive voice, such as Joshua Baraka, found that a company used a vocal impersonator to promote products without consent, their legal options would be limited.

They could sue for copyright infringement if the actual sound recording or composition was copied, but if vocal style or timbre imitation alone would not qualify for all intents and purposes. A passing off claim might be possible if the voice is closely associated with a brand, but this too, remains untested.

Defamation or invasion of privacy claims could be attempted, but are not designed to address commercial exploitation of vocal identity. Damages might be awarded for copyright infringement or passing off, but not for broader harms to artistic integrity or reputation caused by vocal impersonation.

The Tom Waits v. Doritos case stands as a landmark in protecting artistic identity, establishing that a distinctive voice is a legally protectable attribute under the right of publicity and the Lanham Act. The case’s recognition of voice misappropriation and false endorsement has profoundly impacted U.S. law and remains highly relevant in today’s digital media landscape.

Ugandan cases such as Angella Katatumba v. ACCU and Winnie Asege v. Opportunity Bank have demonstrated the court's important role in protecting artists from unauthorised commercial exploitation of their works and likenesses. However, Uganda’s legal framework remains limited to copyright and passing off, lacking explicit recognition of the right of publicity or protection for vocal identity.

As Uganda’s creative industries grow and technology makes it easier to mimic and exploit personal attributes, there is a pressing need for legal reform. Drawing lessons from Waits v. Doritos, Uganda could benefit from expanding its IP laws to explicitly protect voice and personal identity, ensuring that artists retain control over their unique personas and are shielded from unauthorised commercial use.

This can extend beyond artists and creative arts to ordinary Ugandans and the protection of their unique identity.

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