Identity theft: Waits wins damages over VW advert

The gravelly voice which accompanies his oddball but strangely addictive blues songs is his trademark. One fan famously described Tom Waits' caustic tones as "how you would sound if you drank a quart of bourbon, smoked a pack of cigarettes and swallowed a pack of razor blades late at night after not sleeping for three days".

It is a unique sound in the music industry. Or at least that is what the American singer thought when he turned down an offer to do an advertisement for Volkswagen-Audi España.

What Waits didn't know was that the car company and their agency would get an impersonator to cover his song "Innocent When You Dream" for the advertisement, which was used in Spain five years ago.

That decision has now cost the Volkswagen-Audi and the production company that made the advertisement dear.

An appeal court in Barcelona awarded the singer €36,000 (£24,500) in damages yesterday for copyright infringement and €30,000 for violation of his moral rights, which protect a person's personality and reputation.

Unluckily, for Volkswagen-Audi and the Spanish production company Tandem Campany Guasch, which was named in the lawsuit, Waits was in Spain when the advertisement was screened on television.

Waits claimed he had rejected a request by Tandem Campany Guasch to use the song. After the case, he said: "Now they understand the words to the song better. It wasn't 'Innocent When You Scheme', it was 'Innocent When You Dream'."

Waits and his publisher, Hans Kusters Music, won an initial court judgment in March 2004 before the case went to the appeal court.

Volkswagen-Audi and Tandem Campany Guasch declined to comment on the Barcelona court's decision.

However, perhaps Volkswagen-Audi and the production company should have done their homework better before trying it on with a musician who is famous for refusing any requests to use his songs in advertisements.

He is notoriously litigious and has a similar case pending in Germany against Opel, owned by General Motors, and the advertisement agency McCann Erickson.

Opel also allegedly used a Waits impersonator in a car advertisement shown in Finland and Sweden.

Waits, a reclusive singer who rarely performs outside the US, argues that advertisements damage his "artistic credibility". He said: "Commercials are an unnatural use of my work. It's like having a cow's udder sewn to the side of my face. Painful and humiliating.

"If I stole an Opel, Lancia or Audi, put my name on it and resold it, I'd go to jail. But over there they ask, you say no, and they hire impersonators. They profit from association and I lose time, money and credibility. What's that about?"

In 1990, Waits was awarded $2.6m (£1.4m) in damages by a court in California after he sued Frito-Lay, the American food company that makes Doritos snacks, for "false endorsement". The company had hired someone to impersonate Waits' voice on a version of his song "Step Right Up" for a radio advertisement.

Stephen Carter, a Waits fan from Dallas, Texas, who performs Waits' songs with his own band, was so good at imitating the singerthat he was picked by Frito-Lay's advertising agency to "be Tom Waits".

Ironically, the song, which was written in 1976, is a parody of commercial hucksterism, and consists of a succession of jokey advertising pitches.