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Corn chip blues: When Tom Waits took Doritos to court


Frito-Lay have always been a dab hand at keeping consumers interested. Founded in 1961, the snack foods manufacturer built a small empire selling a variety of salty snacks to America’s hungry hordes. Cheetos, Sun Chips, Ruffles, Tostitos, Doritos, Funyans (not to be confused with bunions, although the smell is similar): Frito-Lay is behind them all. And for each new product, they have run a colourful advertising campaign to convince the public to go out and buy packs and packs of them. In the mid-1980s, one such campaign got Frito-Lay into hot water with none other than Tom Waits, who sued the company for millions of dollars.

It all started when Frito-Lay decided to hire the advertising agency Tracy-Locke Inc to come up with a new radio advert for SalsaRio Doritos, corn chips bursting with the (albeit synthetic) flavours of Latin America. The agency came back to Frito-Lay with a parody song inspired by Tom Wait’s ‘Step Right Up’, featuring the same Carni hollerings as the Small Change track. After a copywriter played the song to Frito-Lay executives to demonstrate the “feeling the commercial would capture”, the company gave the advert the green light.

Keen to ensure the Tom Waits allusion came across on the airwaves, Trace-Locke set about auditioning every gravel-voiced blues singer they could find. The creative team struck gold when they came across a Dallas musician called Stephen Carter, who had been performing uncanny covers of Waits for years. According to court documents, the Tracy-Locke team “did a double-take” when Carter first auditioned,” thinking that maybe Waits himself had come in for the audition as an elaborate joke. At this point, the commercial’s director urged against hiring Carter, believing that his voice was too close to Waits’, which could lead to legal problems later down the road. Clearly, nobody else thought the similarity was a cause for concern because Carter was offered the gig before even leaving the audition room.

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Initially, Tracy-Locke’s executive producer encouraged Carter to dial back the Waitsian drawl, but Frito-Lay and Tracy-Locke agreed that the legally-sound version was far less effective, and Carter was told to stick to the original concept. When the advert went live in 1988, Carter’s hoarse vocals were suddenly everywhere. It was near-on impossible to drive 30 metres without hearing the line: “It’s buffo, boffo, bravo, gung-ho, tallyho but never mellow.” Waits himself heard the advert when it was played during a commercial break on an LA radio station where he was being interviewed. He was speechless; the impersonation was spot on. He even entertained the possibility that he’d recorded the ad while blackout drunk. Although, as he later said, “I think I would have remembered doing that.”

Waits had been burnt once before. In 1981, he agreed to do a voiceover for a dog-food commercial, something he later regretted. Incidentally, if you want to hear Waits wholeheartedly sell “the first dry dog food with three tempting meaty tastes: Beef, liver, bacon” then you can watch it here. After submitting himself to that, Waits decided he’d rather “have a hot lead enema” than do averts again. So when the Doritos ad came out, he was angered because it was making his fans think he’d done back on his word for the sake of a pay-out. After informing his lawyers, Waits filed a lawsuit against Frito-Lay and Tracy-Locke.

In court, he mocked the advert, calling it a “corn chip sermon” equivalent to someone reconstructing his face with “all the scars, dimples, the lines” in the exact same position. While Waits’ attorneys weren’t able to argue for copyright infringement (he didn’t own the rights to’ Step Right Up’), they were able to evoke the recent Midler v. Ford Motor case. When Bette Midler refused to appear in one of the car manufacturer’s adverts, they decided to license her 1972 track ‘Do You Want to Dance’ and hire a Bette-Milder lookalike instead. The singer sued Ford and won the case, with the court deciding that a singer with a “distinct” and “well known” voice also owned its likeness. To begin with, Frito-Lay argued that Waits wasn’t nearly famous enough for the precedent to apply. The court, on the other hand, disagreed and awarded Waits $2.6 million in damages.

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