Tom Waits v. Frito-Lay, Inc. Tracy-Locke, Inc.

The opinion in the above-entitled case, No. 90-55981, slip op. 9429 (9th Cir. Aug. 5, 1992), is amended by deleting footnote 4 on page 9449, and substituting in its place the following:

With this amendment the panel has voted to deny the petition for rehearing. Judges Browning and Reinhardt reject the suggestion for rehearing en banc and Judge Boochever recommends rejection of the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. (Fed.R.App.P. 35.)

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

Defendants Frito-Lay, Inc., and Tracy-Locke, Inc., appeal a jury verdict and award of $2.6 million in compensatory damages, punitive damages, and attorney's fees, in favor of singer Tom Waits. Waits sued the snack food manufacturer and its advertising agency for voice misappropriation and false endorsement following the broadcast of a radio commercial for SalsaRio Doritos which featured a vocal performance imitating Waits' raspy singing voice. On appeal, the defendants mount attacks on nearly all aspects of the judgment.

In challenging the judgment on Waits' voice misappropriation claim, the defendants first contend that our decision in Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir.1988), cert. denied, --- U.S. ----, 112 S.Ct. 1513, 1514, 117 L.Ed.2d 650 (1992), recognizing voice misappropriation as a California tort, is no longer good law. Next, they contend that the district court erred in instructing the jury on the elements of voice misappropriation. Finally, the defendants urge us to vacate portions of the jury's damage award, arguing that several types of compensatory damages as well as punitive damages are unavailable as a matter of law, and in any event lack evidentiary support.

In challenging the judgment on Waits' false endorsement claim under section 43(a) of the Lanham Act, the defendants contend that Waits lacks standing to sue because he is not in competition with the defendants. They also argue that Waits did not establish his claim at trial, and that damages and attorney's fees were improperly awarded.

Because it is duplicative, we vacate the award of damages under the Lanham Act. We affirm in all other respects.BACKGROUND

Tom Waits is a professional singer, songwriter, and actor of some renown. Waits has a raspy, gravelly singing voice, described by one fan as "like how you'd 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." Since the early 1970s, when his professional singing career began, Waits has recorded more than seventeen albums and has toured extensively, playing to sold-out audiences throughout the United States, Canada, Europe, Japan, and Australia. Regarded as a "prestige artist" rather than a musical superstar, Waits has achieved both commercial and critical success in his musical career. In 1987, Waits received Rolling Stone magazine's Critic's Award for Best Live Performance, chosen over other noted performers such as Bruce Springsteen, U2, David Bowie, and Madonna. SPIN magazine listed him in its March 1990 issue as one of the ten most interesting recording artists of the last five years. Waits has appeared and performed on such television programs as "Saturday Night Live" and "Late Night with David Letterman," and has been the subject of numerous magazine and newspaper articles appearing in such publications as Time, Newsweek, and the Wall Street Journal. Tom Waits does not, however, do commercials. He has maintained this policy consistently during the past ten years, rejecting numerous lucrative offers to endorse major products. Moreover, Waits' policy is a public one: in magazine, radio, and newspaper interviews he has expressed his philosophy that musical artists should not do commercials because it detracts from their artistic integrity.

Frito-Lay, Inc. is in the business of manufacturing, distributing, and selling prepared and packaged food products, including Doritos brand corn chips. Tracy-Locke, Inc. is an advertising agency which counts Frito-Lay among its clients. In developing an advertising campaign to introduce a new Frito-Lay product, SalsaRio Doritos, Tracy-Locke found inspiration in a 1976 Waits song, "Step Right Up." Ironically, this song is a jazzy parody of commercial hucksterism, and consists of a succession of humorous advertising pitches.1 The commercial the ad agency wrote echoed the rhyming word play of the Waits song. In its presentation of the script to Frito-Lay, Tracy-Locke had the copywriter sing a preliminary rendition of the commercial and then played Waits' recorded rendition of "Step Right Up" to demonstrate the feeling the commercial would capture. Frito-Lay approved the overall concept and the script.

The story of Tracy-Locke's search for a lead singer for the commercial suggests that no one would do but a singer who could not only capture the feeling of "Step Right Up" but also imitate Tom Waits' voice. The initial efforts of the ad agency's creative team, using a respected professional singer with a deep bluesy voice, met with disapproval from executives at both Tracy-Locke and Frito-Lay. Tracy-Locke then auditioned a number of other singers who could sing in a gravelly style.

Stephen Carter was among those who auditioned. A recording engineer who was acquainted with Carter's work had recommended him to Tracy-Locke as someone who did a good Tom Waits imitation. Carter was a professional musician from Dallas and a Tom Waits fan. Over ten years of performing Waits songs as part of his band's repertoire, he had consciously perfected an imitation of Waits' voice. When Carter auditioned, members of the Tracy-Locke creative team "did a double take" over Carter's near-perfect imitation of Waits, and remarked to him how much he sounded like Waits. In fact, the commercial's musical director warned Carter that he probably wouldn't get the job because he sounded too much like Waits, which could pose legal problems. Carter, however, did get the job.

At the recording session for the commercial David Brenner, Tracy-Locke's executive producer, became concerned about the legal implications of Carter's skill in imitating Waits, and attempted to get Carter to "back off" his Waits imitation. Neither the client nor the members of the creative team, however, liked the result. After the session, Carter remarked to Brenner that Waits would be unhappy with the commercial because of his publicly avowed policy against doing commercial endorsements and his disapproval of artists who did. Brenner acknowledged he was aware of this, telling Carter that he had previously approached Waits to do a Diet Coke commercial and "you never heard anybody say no so fast in your life." Brenner conveyed to Robert Grossman, Tracy-Locke's managing vice president and the executive on the Frito-Lay account, his concerns that the commercial was too close to Waits' voice. As a precaution, Brenner made an alternate version of the commercial with another singer.

On the day the commercial was due for release to radio stations across the country, Grossman had a ten-minute long-distance telephone consultation with Tracy-Locke's attorney, asking him whether there would be legal problems with a commercial that sought to capture the same feeling as Waits' music. The attorney noted that there was a "high profile" risk of a lawsuit in view of recent case law recognizing the protectability of a distinctive voice. Based on what Grossman had told him, however, the attorney did not think such a suit would have merit, because a singer's style of music is not protected. Grossman then presented both the Carter tape and the alternate version to Frito-Lay, noting the legal risks involved in the Carter version. He recommended the Carter version, however, and noted that Tracy-Locke would indemnify Frito-Lay in the event of a lawsuit. Frito-Lay chose the Carter version.

The commercial was broadcast in September and October 1988 on over 250 radio stations located in 61 markets nationwide, including Los Angeles, San Francisco, and Chicago. Waits heard it during his appearance on a Los Angeles radio program, and was shocked. He realized "immediately that whoever was going to hear this and obviously identify the voice would also identify that [Tom Waits] in fact had agreed to do a commercial for Doritos."

In November 1988, Waits sued Tracy-Locke and Frito-Lay, alleging claims of misappropriation under California law and false endorsement under the Lanham Act. The case was tried before a jury in April and May 1990. The jury found in Waits' favor, awarding him $375,000 compensatory damages and $2 million punitive damages for voice misappropriation, and $100,000 damages for violation of the Lanham Act. The court awarded Waits attorneys' fees under the Lanham Act. This timely appeal followed.

In Midler v. Ford Motor Co., 849 F.2d 460, 463 (9th Cir.1988), cert. denied, --- U.S. ----, 112 S.Ct. 1513, 1514, 117 L.Ed.2d 650 (1992), we held that "when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California." The Midler tort is a species of violation of the "right of publicity," the right of a person whose identity has commercial value--most often a celebrity--to control the commercial use of that identity. See Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821, 824-25 (9th Cir.1974). See generally J.T. McCarthy, The Rights of Publicity and Privacy (1987) (hereafter Publicity and Privacy ). We recognized in Midler that when voice is a sufficient indicia of a celebrity's identity, the right of publicity protects against its imitation for commercial purposes without the celebrity's consent. See Midler, 849 F.2d at 463.

The jury found that the defendants had violated Waits' right of publicity by broadcasting a commercial which featured a deliberate imitation of Waits' voice. In doing so, the jury determined that Waits has a distinctive voice which is widely known. On appeal, the defendants attack the legal underpinnings of voice misappropriation, arguing that Midler is no longer an accurate statement of California law. They also find fault with the court's formulation of the elements of voice misappropriation in its instructions to the jury. Finally, they attack both the compensatory and punitive damages awarded by the jury as legally inappropriate and unsupported by the evidence. We address each contention in turn.

As a threshold matter, the defendants ask us to rethink Midler, and to reject it as an inaccurate statement of California law. Midler, according to the defendants, has been "impliedly overruled" by the Supreme Court's decision in Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989). Additionally, they argue that the Midler tort is preempted by the federal Copyright Act. We review these questions of law de novo. See Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990).

Bonito Boats involved a Florida statute giving perpetual patent-like protection to boat hull designs already on the market, a class of manufactured articles expressly excluded from federal patent protection. The Court ruled that the Florida statute was preempted by federal patent law because it directly conflicted with the comprehensive federal patent scheme. In reaching this conclusion, the Court cited its earlier decisions in Sears Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 84 S.Ct. 784, 11 L.Ed.2d 661 (1964), and Compco Corp. v. Day-Brite Lighting, 376 U.S. 234, 84 S.Ct. 779, 11 L.Ed.2d 669 (1964), for the proposition that "publicly known design and utilitarian ideas which were unprotected by patent occupied much the same position as the subject matter of an expired patent," i.e., they are expressly unprotected. Bonito Boats, 489 U.S. at 152, 109 S.Ct. at 978.

The defendants seize upon this citation to Sears and Compco as a reaffirmation of the sweeping preemption principles for which these cases were once read to stand. They argue that Midler was wrongly decided because it ignores these two decisions, an omission that the defendants say indicates an erroneous assumption that Sears and Compco have been "relegated to the constitutional junkyard." Thus, the defendants go on to reason, earlier cases that rejected entertainers' challenges to imitations of their performances based on federal copyright preemption, were correctly decided because they relied on Sears and Compco. See Sinatra v. Goodyear Tire & Rubber Co., 435 F.2d 711, 716-18 (9th Cir.1970), cert. denied, 402 U.S. 906, 91 S.Ct. 1376, 28 L.Ed.2d 646 (1971); Booth v. Colgate-Palmolive Co., 362 F.Supp. 343, 348 (S.D.N.Y.1973); Davis v. Trans World Airlines, 297 F.Supp. 1145, 1147 (C.D.Cal.1969). This reasoning suffers from a number of flaws.

Bonito Boats itself cautions against reading Sears and Compco for a "broad pre-emptive principle" and cites subsequent Supreme Court decisions retreating from such a sweeping interpretation. "[T]he Patent and Copyright Clauses do not, by their own force or by negative implication, deprive the States of the power to adopt rules for the promotion of intellectual creation." Bonito Boats, 489 U.S. at 165, 109 S.Ct. at 985 (citing, inter alia, Goldstein v. California, 412 U.S. 546, 552-61, 93 S.Ct. 2303, 2307-08, 37 L.Ed.2d 163 (1973) and Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 478-79, 94 S.Ct. 1879, 1885, 40 L.Ed.2d 315 (1974)). Instead, the Court reaffirmed the right of states to "place limited regulations on the use of unpatented designs in order to prevent consumer confusion as to source." Id. Bonito Boats thus cannot be read as endorsing or resurrecting the broad reading of Compco and Sears urged by the defendants, under which Waits' state tort claim arguably would be preempted.

Moreover, the Court itself recognized the authority of states to protect entertainers' "right of publicity" in Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977). In Zacchini, the Court endorsed a state right-of-publicity law as in harmony with federal patent and copyright law, holding that an unconsented-to television news broadcast of a commercial entertainer's performance was not protected by the First Amendment. Id. at 573, 576-78, 97 S.Ct. at 2856, 2858-59. The cases Frito asserts were "rightly decided" all predate Zacchini and other Supreme Court precedent narrowing Sears' and Compco 's sweeping preemption principles. In sum, our holding in Midler, upon which Waits' voice misappropriation claim rests, has not been eroded by subsequent authority.

The defendants ask that we rethink Midler anyway, arguing as the defendants did there that voice misappropriation is preempted by section 114 of the Copyright Act. Under this provision, a state cause of action escapes Copyright Act preemption if its subject matter "does not come within the subject matter of copyright ... including works or authorship not fixed in any tangible medium of expression." 17 U.S.C. § 301(b)(1). We rejected copyright preemption in Midler because voice is not a subject matter of copyright: "A voice is not copyrightable. The sounds are not 'fixed.' " Midler, 849 F.2d at 462. As a three-judge panel, we are not at liberty to reconsider this conclusion, and even if we were, we would decline to disturb it.

Waits' claim, like Bette Midler's, is for infringement of voice, not for infringement of a copyrightable subject such as sound recording or musical composition. Moreover, the legislative history of section 114 indicates the express intent of Congress that "[t]he evolving common law rights of 'privacy,' 'publicity,' and trade secrets ... remain unaffected [by the preemption provision] as long as the causes of action contain elements, such as an invasion of personal rights ... that are different in kind from copyright infringement." H.R.Rep. No. 1476, 94th Cong., 2d Sess. 132, reprinted in 1976 U.S.C.C.A.N. 5659, 5748. Waits' voice misappropriation claim is one for invasion of a personal property right: his right of publicity to control the use of his identity as embodied in his voice. See Midler, 849 F.2d at 462-63 ("What is put forward as protectable here is more personal than any work of authorship.... A voice is as distinctive and personal as a face.") The trial's focus was on the elements of voice misappropriation, as formulated in Midler: whether the defendants had deliberately imitated Waits' voice rather than simply his style and whether Waits' voice was sufficiently distinctive and widely known to give him a protectable right in its use. These elements are "different in kind" from those in a copyright infringement case challenging the unauthorized use of a song or recording. Waits' voice misappropriation claim, therefore, is not preempted by federal copyright law.

The defendants next contend that the district court committed prejudicial error by rejecting their proposed jury instructions on three elements of the Midler tort: the deliberate misappropriation for commercial purposes of (1) a voice, that is (2) distinctive and (3) widely known. We consider jury instructions as a whole to determine if they are misleading or inadequate. United States v. Beltran-Rios, 878 F.2d 1208, 1214 (9th Cir.1989). We review challenges to the formulation of jury instructions for abuse of discretion. Id. Whether a jury instruction misstates the elements that must be proved at trial, however, is a question of law which we review de novo. United States v. Spillone, 879 F.2d 514, 525 (9th Cir.1989), cert. denied, --- U.S. ----, ----, 111 S.Ct. 173, 210, 112 L.Ed.2d 137, 170 (1990).

(1) "Voice" vs. "Style"

The defendants argued at trial that although they had consciously copied Tom Waits' style in creating the Doritos commercial, they had not deliberately imitated his voice. They accordingly proposed a jury instruction which distinguished in detail between voice, which is protected under Midler, and style, which is not.2 The district court rejected this instruction. Instead, its instructions on voice misappropriation track closely the elements of the tort as formulated in Midler. The court's instruction directed the jury to decide whether Waits' voice is distinctive, whether his voice is widely known, and whether the defendants had deliberately imitated his voice.

The defendants argue that their proposed "style" instruction was crucial because of the deliberate stylistic similarities between the Doritos commercial and "Step Right Up" and because in instructing the jury on Waits' Lanham Act claim, the court told the jury that it could consider Waits' singing style, songwriting style, and manner of presentation. In failing to give their proposed instruction, the defendants contend, the court misled the jury into believing that it could also consider the defendants' admitted imitation of Waits' style in determining liability for voice misappropriation.

We disagree because, read as a whole, the instructions were not misleading. In charging the jury, the court repeatedly noted that two claims were presented for determination and gave separate instructions on each claim. The court's voice misappropriation instructions limited the jury's consideration to voice, and in no way implied that it could consider style. Indeed, in addressing the jury in closing argument, Waits' attorney agreed with the defendants that style was not protected. Moreover, the court included an additional instruction that effectively narrowed the jury's focus to Waits' voice and indicated that style imitation alone was insufficient for tort liability. For the defendants to be liable for voice misappropriation, the court stated, the imitation had to be so good that "people who were familiar with plaintiff's voice who heard the commercial believed plaintiff performed it. In this connection it is not enough that they were reminded of plaintiff or thought the singer sounded like plaintiff...."3 (Emphasis added.) Even if the jury were initially confused about whether the defendants could be liable simply for imitating Waits' style, this instruction would have disabused them of this notion.

(2) Definition of "Distinctive"

The defendants next argue that the court's instruction concerning the meaning of "distinctive" was an unfair and inaccurate statement of the law because it confuses the "distinctiveness" of a voice with its identifiability or recognizability. The instruction given states in part: "A voice is distinctive if it is distinguishable from the voices of other singers.... if it has particular qualities or characteristics that identify it with a particular singer." At trial the defendants' experts testified that identifiability depends, not on distinctiveness, but on the listener's expectations; that distinctiveness and recognizability are not the same thing; and that recognizability is enhanced by style similarity. The defendants argue that these theories were inadequately dealt with by the court's instruction and that because anyone's voice is identifiable by someone, it was error for the court not to make clear the difference between distinctiveness and identifiability. We disagree.

The defendants' technical argument that distinctiveness is a separate concept from identifiability, while supported by their experts' testimony, has no basis in law. Identifiability is properly considered in evaluating distinctiveness, for it is a central element of a right of publicity claim. See Publicity and Privacy § 3.4[A] & n. 1 (citing cases). Our Midler holding is premised on the fact that a person is as identifiable by voice as by any other indicia of identity previously recognized as protectable. Although we did not define "distinctiveness" in Midler, we stated: "A voice is as distinctive and personal as a face. The human voice is one of the most palpable ways identity is manifested. We are all aware that a friend is at once known by a few words on the phone.... [T]hese observations hold true of singing...." Midler v. Ford, 849 F.2d at 463 (emphasis added). See also Motschenbacher, 498 F.2d at 826-27 (rejecting trial court's ruling that because plaintiff's face was not recognizable in advertisement photograph, his identity had not been misappropriated, and finding that plaintiff was identifiable from distinctive decorations on race car).

The court's "distinctiveness" instruction informed the jury that it could consider the recordings of Waits' voice introduced into evidence and the testimony of expert and other witnesses. The court thus invited members of the jury to use their common sense in determining whether Waits has a distinctive enough voice to warrant protection, and to consider as well what the experts had to say. This was entirely appropriate. See Publicity and Privacy, § 3.4[C] (jury must use "common sense ... guided by the weight of the evidence" in determining minimum threshold of identifiability in right of publicity actions). The court was not required to formulate instructions endorsing expert opinions which lacked legal foundation. Finally, we are unpersuaded by the defendants' argument that the court's instruction would have allowed the jury to hold them liable for imitation of a voice that was identifiable by only a small number of people, inasmuch as Midler also requires that the plaintiff's voice be "widely known."

(3) Definition of "Widely Known"

The defendants next object to the district court's instruction concerning the element of "widely known" on the ground that it was too vague to guide the jury in making a factual determination of the issue. The court instructed the jury: "A professional singer's voice is widely known if it is known to a large number of people throughout a relatively large geographic area." (Emphasis added.) The court rejected an instruction proposed by the defendants, which reflected their contention at trial that Tom Waits is a singer known only to music insiders and to a small but loyal group of fans: "A singer is not widely known if he is only recognized by his own fans, or fans of a particular sort of music, or a small segment of the population."

The legal underpinnings of this proposed instruction are questionable. The defendants assert that because Waits has not achieved the level of celebrity Bette Midler has, he is not well known under the Midler standard. We reject this crabbed interpretation of Midler. The defendants' proposed instruction would have excluded from legal protection the voices of many popular singers who fall short of superstardom. "Well known" is a relative term, and differences in the extent of celebrity are adequately reflected in the amount of damages recoverable. See Motschenbacher, 498 F.2d at 824 n. 11 ("Generally, the greater the fame or notoriety of the identity appropriated, the greater will be the extent of the economic injury suffered."). Moreover, even were these instructions inadequate in some regard the error would be harmless, for we agree with the district court that the "great weight of evidence produced at trial indicates that Tom Waits is very widely known."

In sum, we find no error in the instructions given to the jury on Waits' voice misappropriation claim.

The jury awarded Waits the following compensatory damages for voice misappropriation: $100,000 for the fair market value of his services; $200,000 for injury to his peace, happiness and feelings; and $75,000 for injury to his goodwill, professional standing and future publicity value. The defendants contest the latter two awards, disputing both the availability of such damages in a voice misappropriation action and the sufficiency of the evidence supporting the awards.

The defendants argue that in right of publicity actions, only damages to compensate for economic injury are available. We disagree. Although the injury stemming from violation of the right of publicity "may be largely, or even wholly, of an economic or material nature," we have recognized that "it is quite possible that the appropriation of the identity of a celebrity may induce humiliation, embarrassment, and mental distress." Motschenbacher, 498 F.2d at 824 & n. 11. Contrary to the defendants' assertions, Midler neither discussed nor limited the damages recoverable in a voice misappropriation action. Midler makes reference to the market value of Midler's voice solely to support its conclusion that her voice has economic value and, therefore, is a protectable property right. See 849 F.2d at 463.

In assessing the propriety of mental distress damages, our focus is properly directed to the nature of the infringement and its embarrassing impact on the plaintiff. Publicity and Privacy § 4.2[A]. Often the objectionable nature of the use will cause mental distress. Id. § 4.2[B], [C], [D] (discussing cases). In Grant v. Esquire, Inc., 367 F.Supp. 876 (S.D.N.Y.1973), for example, the court found that the mere use of a celebrity's identity could cause embarrassment for which mental distress damages would be available. The case involved a suit by Cary Grant against Esquire magazine for publishing a photograph in which Grant's head was superimposed on a clothing model's torso. Like Waits, Grant had taken a public position against reaping commercial profits from the publicity value of his identity. Id. at 880. The court, after finding that Grant had a protectable right of publicity, noted that "[i]f the jury decides in plaintiff Grant's favor he will of course be entitled to recover for any lacerations to his feelings that he may be able to establish" in addition to the fair market value of use of his identity. Id. at 881. Given the evidence that the commercial use of his voice was particularly offensive to Waits, we conclude that Waits' prayer for mental distress damages was properly submitted to the jury.

The defendants argue, however, that merely taking offense is an insufficient basis for awarding mental distress damages, and that under California law the evidence was insufficient to support the award. In California, mental distress damages may be recovered for "shame, humiliation, embarrassment, [and] anger." Young v. Bank of America, 141 Cal.App.3d 108, 114, 190 Cal.Rptr. 122 (1983); see also Moore v. Greene, 431 F.2d 584, 591 & n. 3 (9th Cir.1970) (damages available for anxiety, humiliation and indignity). Waits testified that when he heard the Doritos commercial, "this corn chip sermon," he was shocked and very angry. These feelings "grew and grew over a period of a couple of days" because of his strong public opposition to doing commercials. Waits testified, "[I]t embarrassed me. I had to call all my friends, that if they hear this thing, please be informed this is not me. I was on the phone for days. I also had people calling me saying, Gee, Tom, I heard the new Doritos ad." Added to this evidence of Waits' shock, anger, and embarrassment is the strong inference that, because of his outspoken public stance against doing commercial endorsements, the Doritos commercial humiliated Waits by making him an apparent hypocrite. This evidence was sufficient both to allow the jury to consider mental distress damages and to support their eventual award.

2. Injury to Goodwill and Future Publicity Value

The defendants next argue that reputational damages are available only in defamation actions and that since Waits did not allege or prove defamation, they were unavailable here. Further, they argue, there was no evidence to support the award of such damages because Waits did not show that his career had suffered. Again, we reject these contentions.

We have no doubt, in light of general tort liability principles, that where the misappropriation of identity causes injury to reputation, compensation for such injury is appropriate. See Cal.Civ.Code § 3333 (West 1970) (available damages are those "which will compensate for all of the detriment" caused by defendant's tortious conduct). Reputational damages, moreover, have been awarded in right of publicity cases. See Clark v. Celeb Publishing, Inc., 530 F.Supp. 979, 984 (S.D.N.Y.1981) (applying California law); Hirsch v. S.C. Johnson & Son, Inc., 90 Wis.2d 379, 280 N.W.2d 129, 138 (1979). The central issue is not whether these damages were available, but whether the evidence was sufficient to establish injury to Waits' reputation. As we noted above, the jury could have inferred from the evidence that the commercial created a public impression that Waits was a hypocrite for endorsing Doritos. Moreover, it also could have inferred damage to his artistic reputation, for Waits had testified that "part of my character and personality and image that I have cultivated is that I do not endorse products." Finally, from the testimony of Waits' expert witness, the jury could have inferred that if Waits ever wanted to do a commercial in the future, the fee he could command would be lowered by $50,000 to $150,000 because of the Doritos commercial. This evidence was sufficient to support the jury's award of $75,000 for injury to Waits' goodwill and future publicity value.

The jury awarded Waits a total of $2 million in punitive damages for voice misappropriation: $1.5 million against Tracy-Locke and $500,000 against Frito-Lay. The defendants ask that we vacate this award, arguing that punitive damages are unavailable as a matter of law, and alternatively, that the evidence was insufficient to support their award.