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When Tom Waits Sued Frito-Lay Over a Doritos Ad

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Getty Images

For their Doritos line of corn chips, Frito-Lay has made variety its calling card, attempting to keep consumers’ attention through new types and flavors. Over the years, the company has run a plethora of colorful advertising campaigns to convince the public they wanted, say, a hot wing- or pizza-flavored nacho.

It was one of these ad campaigns for a new flavor that got the company in hot water with singer Tom Waits, and Frito-Lay wound up paying a few million in corporate dollars to the gravel-voiced musician as a result.

In the mid-’80s, Frito-Lay hired advertising agency Tracy-Locke Inc. to develop a radio spot for its new SalsaRio Doritos. The agency came up with an ad inspired by “Step Right Up,” a song parodying pitchmen and carnival barkers on Waits’s 1976 album Small Change. According to subsequent court documents, a copywriter played the song to Frito-Lay executives to “demonstrate the feeling the commercial would capture.” Frito-Lay approved.

Tracy-Locke auditioned a number of haggard-voiced, bluesy singers, and a recording engineer recommended Stephen Carter, a Dallas musician who had performed Waits songs for years and even did an impersonation of the singer.

“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,” the court filings reveal. “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.”

Tracy-Locke’s executive producer even told him to “back off” the imitation for fear of legal challenges, but both Frito-Lay and Tracy-Locke found the less Waits-ish recording ineffective, and they decided to keep the original concept.

In 1988, the ad went out to radio stations. “There's a new tortilla chip called SalsaRio Doritos,” crooned Carter. “It's buffo, boffo, bravo, gung-ho, tallyho but never mellow.”

Waits heard the ad when he made an appearance on a Los Angeles radio station and it played during the commercial block. Even he was jolted by Carter’s spot-on impersonation. He joked in a 2002 interview that he thought maybe he’d recorded the ad in a drunken blackout. “I mean, there's a lot of things I can't remember, but I think I would have remembered doing that.”

In 1981, Waits did a voiceover for a dog food commercial, but came to regret it. Since then, he refused to appear in or license his songs for advertising. He once said he‘d “rather have a hot lead enema” than do ads again. The Doritos spot enraged him because fans might think he’d backslid on that stance. He filed suit against Frito-Lay and Tracy-Locke.

While testifying in 1990, Waits was as colorful on the stand as he is on records. He mocked the ad as a “corn chip sermon” and said it was the equivalent of someone reconstructing his face: “All the scars, dimples, the lines all being in the same place.”

Waits’s attorneys didn’t argue copyright infringement, partially because he didn’t own the rights to “Step Right Up”; his former label did. Instead, they evoked very recent case law: Midler v. Ford Motor Co. [PDF]. In the ’80s, Ford ran a series of TV ads featuring singers performing past hits to evoke nostalgia. When Bette Midler declined to appear in one, Ford’s ad agency simply licensed her 1972 hit “Do You Want to Dance?” from its copyright holder and hired a Midler sound- and look-alike. Midler sued. The court decided a singer with a “distinct” and “well known” voice owned its likeness.

Waits vs. Frito-Lay was the first test of the Midler decision. Frito-Lay's lawyers argued that Waits was not nearly as famous as Midler, and that the precedent didn't apply. The court disagreed, saying that "well known" is relative, and that a "great weight of evidence produced at trial indicates that Tom Waits is very widely known." Waits was awarded $2.6 million in damages.

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Sam Adams's New $200 Beer Might Be Illegal in Your State
Sam Adams
Sam Adams

If you don’t have a high tolerance, Sam Adams’s latest beer could be more of a conversation piece than anything you want to imbibe. That is, if you can even get ahold of the $200 brew at all. The 2017 release of Utopias, the beer maker's biennial barrel-aged specialty, has a staggering 28 percent alcohol-by-volume (ABV) content—making it illegal in some places in the U.S.

According to Thrillist, Utopias’s unusually high ABV makes it unwelcome in 12 states, including Alabama, Arkansas, Georgia, Idaho, Mississippi, Montana, New Hampshire, both North and South Carolina, Tennessee, Vermont, and Washington. While a typical beer is between 4 and 7 percent ABV, your average distilled spirit can be 40 percent ABV (also known as 80 proof) or more. So what's the big deal with a 28 percent ABV drink? It turns out, those states have laws limiting the strength of beer, many of them holdovers from the end of Prohibition. Sorry, Alabama beer obsessives.

Assuming you’re legally able to buy a bottle of Utopias, what can you expect? Sam Adams says it has flavors reminiscent of "dark fruit, subtle sweetness, and a deep rich malty smoothness," but the beer won’t be bubbly, according to Fortune, since at that level, the alcohol devours any CO2. You should think of it more as a fine liquor or cognac than a craft beer. And you should pour it accordingly, Sam Adams recommends, in 1-ounce servings.

The 2017 Utopias run will be limited to 13,000 bottles. The brew goes on sale for $200 in early December.

[h/t Thrillist]

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politics
New York City Will Now Allow You to Dance Without a License
IStock
IStock

In New York City, there’s a tricky law on the books that requires any business serving food or drinks to acquire what’s known as a Cabaret License in order to allow customers to dance. The mandate stems from a 1926 policy introduced by then-mayor Jimmy Walker to help curb what some residents believed to be “altogether too much running wild” in the Jazz Age clubs of the era. (It's also possible that the law was meant to prevent interracial coupling.) City officials have regularly enforced the law during the proceeding century, with some clubs even cutting off music—or switching to country—when inspectors arrived unannounced.

Now, it appears the outdated restriction has come to an end. According to The New York Times, Brooklyn councilman Rafael Espinal has introduced a bill expected to pass Tuesday that will forever end any and all comparisons to the 1984 Kevin Bacon film Footloose. The repeal comes on the heels of concerns that the prohibition pushes people into attending "underground" dance clubs that exceed (or ignore) fire department capacity limits.

While Espinal is convinced he has the necessary votes to move forward, several proprietors have attempted to challenge the law over the years. In 2014, bar owner and attorney Andrew Muchmore filed a lawsuit in U.S. District Court claiming that the restriction was outdated and obtaining the license was a laborious process. To approve an application, the city’s Department of Consumer affairs has to verify a venue has security cameras and owners have to attend regular board conferences. The cost of the license can range from $300 to $1000, depending on the area’s capacity and, for some unfathomable reason, whether it’s an even or odd year.

Espinal's efforts and anticipated success getting rid of the Cabaret Law will cap 91 years of illicit dancing within the city limits. Just don't get too cozy with your partner: thanks to another antiquated regulation, you can still be fined $25 for flirting.

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