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When Tom Waits Sued Frito-Lay Over a Doritos Ad

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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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Peanuts Are Making Their Final Departure From Southwest Airlines
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Southwest Airlines—the commercial flying juggernaut that made peanuts an airplane staple 47 years ago—is now doing away with them for good. Starting August 1, the airline will no longer offer peanuts on any of its flights.

According to the company, it’s all about concern for people with allergies, ABC News reports. “Our ultimate goal is to create an environment where all customers—including those with peanut-related allergies—feel safe and welcome on every Southwest flight,” the airline said in a statement.

Southwest Airlines started offering free peanuts on all its flights in 1971. The practice, which later became synonymous with airplane travel, originally began as a cheeky marketing ploy. In an effort to lower prices, the airline stopped serving in-flight meals and told customers they could fly for peanuts, both literally and figuratively.

But the ubiquity of peanuts on airplanes soon became a concern for individuals with severe food allergies. Proponents of airplane peanut bans say severely allergic individuals can experience reactions from airborne peanut dust alone, but organizations like the American Peanut Council are predictably more skeptical. There’s not enough evidence that someone can experience severe allergic reactions from inhaling peanut dust, they say, so the claim may be a myth.

Fact is, there’s not a whole lot of concrete information on either side. In a 2008 article published in the Annals of Allergy, Asthma, and Immunology, researchers surveyed 471 people with a medical history of food allergies. Of that number, 41 said they’d experienced allergic reactions to food on commercial airline flights (mostly to peanuts), and 26 said those reactions had come from inhaled peanut dust. An unspecified number said their reactions had been life-threatening. But the study’s authors admitted within the article their methods had limitations—researchers recruited participants through newspaper advertisements, for one, and the data were all self-reported.

The lack of decisive evidence that airplane peanuts cause severe allergic reactions is one reason why airlines have historically been reluctant to make changes. In 2010, the Department of Transportation contemplated banning peanuts on planes, but it abandoned the idea after being reminded of a 2000 law that prohibits the department from enforcing any peanut bans without the support of a conclusive, peer-reviewed study showing severe reactions resulting from "contact with very small airborne peanut particles of the kind that passengers might encounter in an aircraft."

Further complicating the issue is the fact that severe allergies are considered a disability under the Americans with Disabilities Act. The ADA doesn’t regulate air travel discrimination, though, which is why the Air Carrier Access Act, or ACAA, was passed in 1986. The ACAA defines a disability as a “physical or mental impairment that substantially limits one or more major life activities.” Severe allergies fall under that (not being able to breathe or eat is a pretty significant impairment), but the ACAA doesn’t specify how airlines should treat customers with food allergies.

Most airlines have specific measures they’ll take in order to accommodate customers with peanut allergies, but such procedures are uneven across airlines, and can sometimes be uneven across flights of the same airline. JetBlue, for example, serves only peanut-free snacks and will make announcements about food allergies. Air Canada recently phased out nuts from all its in-flight food options, and it also offers to create a buffer zone between individuals with allergies and any allergens. Prior to banning peanuts, Southwest allowed people with allergies to pre-board in order to wipe down their seats, but it didn’t make any announcements discouraging passengers from eating peanuts.

Given the airline’s story, peanuts “forever will be part of Southwest's history and DNA,” the company said in a statement. But Southwest isn’t going to stop offering free food to customers who shell out the money for a flight. Passengers in the future can instead look forward to in-flight snacks of pretzels, cookies, veggie chips, and corn chips, CNN reports.

[h/t ABC News]

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18 Secrets of Criminal Defense Attorneys
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It's one of the more thankless jobs in the legal arena. Criminal defense attorneys, who stand beside clients accused of everything from minor offenses to mass murder, must mount the most effective defense of their client possible no matter how heinous the crime. While their work enforces a person’s constitutional right to a fair trial, some observers chastise them for representing society's villains.

In their view, that’s missing the point. In addition to making sure the scales of justice are balanced, criminal defense attorneys find satisfaction in tackling cases with high stakes. "It's an all or nothing game," says Jeffrey Lichtman, a New York-based attorney who has represented John A. Gotti and accused Mexican drug lord Joaquin "El Chapo" Guzman. "It's win or lose. There is pressure, excitement, and responsibility in being a criminal defendant's only protector and support."

To get a better understanding of this often emotionally draining work, Mental Floss spoke with three high-profile defense lawyers. In addition to Lichtman, we talked to Chris Tritico—the subject of the first episode of Oxygen’s In Defense Of docuseries premiering June 25, and who represented Oklahoma City bomber Timothy McVeigh in 1997—as well as Bryan Gates, practicing in North Carolina. Here’s what they shared about life as a devil’s advocate.

1. ATTORNEYS DON'T ALLOW THEIR PERSONAL FEELINGS TO TRUMP DUE PROCESS.

Some defendants have clearly committed terrible crimes, but they still have constitutional rights—so attorneys don't let their personal feelings about a crime get in the way of a client's defense. “There’s never been a day I stood up for someone accused of a crime where I would endorse that crime,” says Tritico. “I don’t justify the act of blowing up a building and killing 168 people. But McVeigh has to be protected and his rights have to be protected. People like me have to be willing to stand up and say, ‘I will stand up for you.’ You do it for McVeigh and you do it for everyone.”

2. BONDING WITH CLIENTS IS KEY, REGARDLESS OF THE CRIME.

It can be hard to find common ground with someone accused of misdeeds that could land them life in prison or even a death sentence, but defense attorneys say that there’s usually a way to relate to their clients as human beings—and the case will be better off for it. Lichtman became friendly with Gotti by discussing family; Tritico found McVeigh to be amiable. “I wanted Tim to like me and I wanted to like him,” he says. “I wanted him to trust my decisions. It doesn’t happen every time, but the vast majority of the time, I like them.”

3. THEY RESEARCH JURORS' BACKGROUNDS.

A criminal defense attorney addresses a jury

Examining a potential juror, known as voir dire, is an art. Both defense and prosecution want people in the jury box who can be swayed, though circumstances are usually stacked against the defense. "The jury is coming in ready to convict, as no one generally supports crime," Lichtman says.

When quizzing would-be participants, Lichtman talks fast: "I’m speaking a-mile-a-minute, looking to get the potentially problematic jurors to either knowingly or unwittingly expose their natural biases so that I can get them kicked off the panel for cause. The jurors who I think can keep an open mind or are anti-police I will not question at all, because I’m afraid they’ll reveal those biases and get struck by the prosecutor when he uses a peremptory challenge [an objection to a juror]."

Once in court, Lichtman focuses on finding the one person in the box of 12 to connect with. “I look up the backgrounds of jurors,” he says. “I’m looking for anything in the background I can exploit in order to tailor my summation to something that’s happened in their lives.”

4. THEY'RE ALWAYS WATCHING THE JURY'S BODY LANGUAGE.

Keeping tabs on a jury means being able to assess which direction they’re leaning. Lichtman says body language can tell him a lot. “You can feel how a trial is going,” he says. Jurors who laugh or smile at his jokes are on his side. Jurors turning away from him are not. “You can tell who’s following you. They’re energized by your arguments.”

Evaluating how jurors are reacting allows Lichtman to make real-time adjustments to his arguments. "As I’m questioning a witness or beseeching the jury during a summation, if I see someone turn away from me, I keep that juror in mind and what may have turned him or her off, and try to rectify or address it down the road," he says. "If I have someone laughing, I know that there’s a juror who may not be acquitting my client but he or she is at least open to it, so I spend a lot of time working on them."

5. THERE’S A REASON THEY STAND SO CLOSE TO THEIR CLIENTS.

A criminal defense attorney stands near his client

The image of an attorney standing up next to their client as the verdict is being read is usually interpreted as a sign of solidarity, but lawyers may have another reason. Tritico says that early in his career, he took on a client charged with aggravated robbery. Despite Tritico’s advice to take a plea bargain, the man took his chance at trial—and lost. His sentence was 40 years. “I was looking at the jury as the verdict was being read and felt something moving,” he says. “He had passed out. From that point forward, I always grab my client by the arm to make sure that doesn’t happen again.”

Sometimes, it's the attorney who might need the assist. According to Tritico, hearing a man being sentenced to death, as he did with McVeigh, "might be the most sobering thing you'll ever hear in your life."

6. A CLIENT CAN BE THEIR OWN WORST ENEMY.

The adage about never, ever talking to police without an attorney present? It’s probably the single best piece of advice any defendant will ever get, yet many still refuse to let the message sink in. “I can’t think of anyone who has ever talked their way out of being charged,” Gates says.

It doesn’t stop there, though. Defendants idling in jail before their court dates can wind up digging themselves an even deeper hole. “They’ll write letters to people. The district attorney, at least in North Carolina, can get a copy. It might not be an outright confession, but there can be things that won’t put them in the best light. Phone calls are the same.” If they're upset with their counsel, some clients will even write letters of complaint to the DA or a judge, which might let slip some damning information that can be used against them later. “That will just devastate a case," Gates says.

7. THEY GET HATE MAIL.

A hateful message is written out on paper

Representing public figures like John A. Gotti, the son of notorious mafia figure John Gotti, often leads to attorneys being damned by association. Lichtman used to get hate mail, which later morphed into hate e-mail and other displays of contempt. “I’ve been spit on walking into court,“ he says. “I’ve been [called names] while sitting at the defense table by a witness walking off whose clock I just cleaned.” None of the vitriol has impacted Lichtman’s drive to mount the best defense possible for his clients. “I’ve never once apologized for what I do. Representing a suspected murderer does not mean I’m pro-murder.”

8. INNOCENT DEFENDANTS CAN MAKE THEIR WORK HARDER.

It might seem like an innocent client would be easier to defend. But according to Gates, having a strong belief that a client is falsely accused creates additional strain on the defense. “It’s very stressful because you’re really identifying with the person,” he says. While no attorney wants to see any client found guilty, it can be gut-wrenching to know the person might be punished for something they didn’t do. “We had one lawyer here [in North Carolina] who worked for 15 years for someone he felt was wrongfully accused, and he was ultimately able to prove it.” But that's unusual—more often, attorneys suspect their clients are innocent and have to look on as juries convict them.

9. SOMETIMES THEY GIVE THEIR CLIENTS MAKEOVERS.

A man admiring himself in a mirror in a menswear shop

If a defendant is partial to ripped jeans and heavy metal t-shirts, attorneys will often advise them to spend some time shopping. “It’s not about creating an illusion,” Tritico says. “But if someone comes in with, say, a mullet, I’m taking them to the barber. We’re buying slacks and a button-down shirt. You need to show respect for the system.”

10. THEY LOVE THE EXCITEMENT—BUT TRIALS DON'T MOVE AS FAST AS YOU THINK.

Ask a criminal defense lawyer why they chose that legal subspecialty and the most common answer is that nothing gets their blood going more than a case with high stakes. “Cases move faster and they’re just more interesting than civil cases,” Gates says. “There’s nothing worse than an extended conversation about Article 2 of the Uniform Commercial Code. It’s just more interesting to talk about a bank robbery.”

That said, no trial moves along at the speed presented by true crime documentaries or popular fiction. “Trials are not interesting to watch," Gates says. "They take a long time and many stretches are just boring. CourtTV, when they would put a camera in the court room all day? Like watching paint dry.” While many trials are over in three to five days, some take weeks or even months. In 2013, jurors spent seven weeks on the federal trial of notorious Boston gangster James "Whitey" Bulger and another five days deliberating on a verdict. (Guilty on 31 counts, including extortion and involvement in murder.)

11. THEY DON’T STAND UP AS OFTEN AS YOU THINK.

A serious-looking lawyer standing up and arguing her case in court

Another popular television trope is the defense attorney pacing, gesticulating, and thumping tables in an effort to exhibit some swagger in front of a jury. While rules for grandstanding vary by state, Gates says that, at least in North Carolina, he doesn’t spend a lot of time on his feet. “We have to question all witnesses from a seated position behind the counsel’s table,” he says. “We can’t pace around the room or pound on a rail. Most judges are not going to let you do a lot of dancing in front of a jury.”

12. THEY THRIVE ON CAN’T-WIN CASES.

Sometimes prosecutors are so determined to nail defendants—particularly in federal trials where ample government resources can mount suffocating cases—that defense attorneys see no obvious way to win. For Lichtman, that’s part of the appeal. While Guzman has yet to go to trial, Lichtman successfully defended Gotti against a litany of racketeering charges in 2005. “When I took on the 'El Chapo' case, I got calls from lawyers I respect saying, ‘You’re crazy, you don’t need this,’” he says. “What am I doing this for if not to take this case? How do you not want to take on challenging cases?” And the greater the obstacle, the more Lichtman prepares. “The more you work, the more you understand the facts, and the better your chances at trial.”

13. THEY BELIEVE THE BAIL SYSTEM IS BROKEN.

A car is parked in front of a bail bonds office

Jailed for a crime? You might be innocent until proven guilty, but that presumption doesn’t mean you’re free to walk the streets. Gates believes the bail system for freeing jailed clients is fundamentally unfair and designed to force plea bargains favorable to the prosecution. “They will reflexively argue for $250,000 bail when a person is unemployed,” he says. “There’s no chance a person could post it. A bondsman will charge at least $20,000.” In the Bronx, for example, the average wait time for a jury trial is 827 days. The longer someone is forced to live in a cell, the easier it is for prosecutors to make a deal—and avoid the dice roll of a jury trial.

14. PUBLIC DEFENDERS GET A BAD RAP.

While it’s true a high-profile attorney can deliver a compelling defense in exchange for a sky-high bill, the stereotype of public defenders assigned to indigent clients as being incompetent is undeserved. “It’s mostly television that gives them the bad rap of being an overworked, under-prepared lawyer,” Tritico says. “But at any of the public defender’s offices I’ve been in, they do good, solid work. It’s a rare day I see someone there who isn’t working as hard as I’m working when I’ve been retained.”

15. THE TRUE CRIME TV CRAZE IS CHANGING THEIR APPROACH.

Every week seems to bring a new docuseries obsession, from Making a Murderer to The Staircase. For lawyers addressing jurors, they have to factor in what these shows have "taught" viewers about the criminal justice system, even if it's not quite accurate. "True crime shows on TV have turned every layperson into an expert in their minds," Lichtman says. "So juries are less likely to believe expert witnesses, police officer witnesses, and prosecutors and defense lawyers because they know better."

Instead of fighting it, Lichtman leans into it. "For me, I don’t mind this new mindset because I play into juries’ natural skepticism in my theory of defense. I exploit the facts that seem impossible to believe, even when true, and beseech the jury to use their common sense gained from a lifetime of experience. And TV watching."

16. PUBLIC OPINION CAN INFLUENCE CASE STRATEGY.

Newspapers are stacked in a pile

Criminal cases can often draw local or national headlines, making prospective jurors aware of the personalities and details involved. A good attorney will always take notice of which way the public tide is turning while preparing a defense. "Public opinion has a huge impact on how I handle a case," Lichtman says. "After all, the jury is a small slice of that public opinion going into a trial, and I need to persuade them or dissuade them during my brief time before them. So it’s important to know what I’m dealing with beforehand. What are the areas of concern or preconceived notions for me at a trial that I need to develop or combat?"

Not doing so, Lichtman believes, is a gross oversight: "A lawyer who does not do his due diligence before the trial starts in learning what public opinion is about his client, or the conduct allegedly committed by his client, is a lazy fool."

17. THEY DON'T HAVE AN OBLIGATION TO DISCLOSE A CLIENT'S ADMISSION OF GUILT.

A lawyer walks away from a crowd of people

If a defendant decides to use their lawyer's office as a confessional, their counsel is under no obligation to turn around and pass that information along to law enforcement. "If a client discloses his guilt to me, I’m obligated to do one thing and one thing only," Lichtman says. "Not let him lie on the stand while under oath."

Defendants don't often testify on their own behalf anyway, but that kind of admission would make sure they don't. "It’s not the defense lawyer’s obligation to do anything but fight the government’s evidence. The search for the truth in a trial does not necessarily include me, the defense attorney," Lichtman says.

18. CLIENTS SOMETIMES WANT ADVICE BEFORE COMMITTING A CRIME.

A gavel rests in front of law books

It is legally and morally forbidden for lawyers to counsel anyone on the best way to commit a crime, but that doesn’t stop people from asking anyway. "I get it a lot, even today," Lichtman says. "'If I do this, is this OK?'" Lichtman will tell them what’s legal "up to the line" and no further. "All the advice is legal and above-board. I treat every conversation as if someone is listening."

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