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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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The Facts Behind That $5 Billion in 'Forgiven' Student Loan Debt
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The New York Times created a considerable stir on July 17 by detailing a widespread student loan repayment crisis. According to the paper, one of the largest holders of private loans, National Collegiate Student Loan Trusts, has been struggling to provide documentation that proves it owns the $5 billion in delinquent accounts that it’s been attempting to collect. Without that paperwork, dozens of lawsuits brought against defaulting borrowers are being dismissed.

A lack of a paper trail is never a good thing for the plaintiff in attempting to collect a debt. But it’s not exactly great news for the borrower, either. 

Here’s why: First, it’s helpful to understand how a typical chain of custody works for private student loans. (Federal loans, which typically have more forgiving terms, are a separate issue entirely.) Banks and other lenders offer loans to applicants, then turn around and sell bundles of those loans to a depositor. That depositor will offer the loans to an umbrella organization like National Collegiate, which is comprised of 15 private trusts holding the paper on more than 800,000 loans.

This lengthy chain of custody is where the problems begin. Because loans pass through several hands, it’s not always clear who has retained the documentation needed by courts to prove that National Collegiate is the owner of the debt they’re attempting to collect from a borrower in default. As a result, judges tasked with these cases often have no choice but to dismiss them.

That’s led to a series of headlines about $5 billion in “forgiven” debt, which may sound comforting to someone burdened with a towering student loan at exorbitant interest rates. However, as several attorneys speaking to the media have pointed out, it’s not that simple. The cases that have been dismissed were in court because the borrower was already in default. In situations where National Collegiate can prove ownership of the debt, those debtors are facing wage garnishment and a negative impact on their credit score. Simply defaulting on a loan and hoping you happen to be one of the people whose paperwork is incomplete is a dangerous form of wishful thinking.

In the event you had no choice but to default and might benefit from National Collegiate's poor record-keeping, you may not walk away unscathed. According to debt relief attorney Daniel Gamez, a student borrower who sees his or her case dismissed is not facing a clean slate. National Collegiate is fighting so many defaulted loans that they may choose to drop cases based on logistical issues like witness scheduling. Still, even if the lawsuit is dropped, National Collegiate may have the option to refile it at a later date—this time armed with the documentation and resources they need. And any debt, even if it’s been declared unenforceable, may still affect your credit score.

Ultimately, whether or not National Collegiate can produce paperwork doesn’t change the fact that a borrower has a student loan that they’ve agreed to repay. As a creditor, National Collegiate is likely to take every legal measure available in order to collect on that debt. While those amounts may be “forgiven” in court, they’re not likely to be forgotten.

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Exhumation Confirms Gravesite of World's Fair Killer H.H. Holmes
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It’s a sordid true crime tale that has few peers. By 1893, the year of the Chicago World’s Fair, a man named H.H. Holmes had converted a sprawling property into an amusement house of murder, filled with secret passages, gas chambers, ovens, and the bodies of young women who made the mistake of booking a room.

Holmes eventually confessed to over two dozen murders and was sentenced to death by hanging in 1896. His body was tossed into a plot at Holy Cross Cemetery near Philadelphia. But ever since then, there has been speculation that Holmes somehow cheated death and may not have been buried there at all. Those rumors can now officially be laid to rest as researchers have confirmed that the remains buried at Holmes's gravesite do in fact belong to the serial killer, according to the AP.

In May, NBC Chicago 5 reported that two of Holmes’s great-grandchildren had persuaded a Pennsylvania court to allow the inspection of their relative’s body in the hope that DNA testing would settle the issue of whether Holmes faked his own death once and for all.

According to newspaper accounts of the era, Holmes requested that his coffin be laid over cement, then topped off with more of the same. That led to a belief that Holmes had somehow eluded his appointment with the noose by offering bribes to law enforcement and had his tomb sealed to prevent any investigation into the matter. Other accounts, including one from the Chicago Tribune on May 8, 1896, appeared certain it was Holmes (real name: Herman Webster Mudgett) who was hung by his neck.

The definitive answer came with assistance from the University of Pennsylvania's Anthropology Department, which agreed to assist Holmes's descendants. The results of that testing were confirmed earlier this week on the series finale of American Ripper, a History Channel series that documented the exhumation and the scientists' search for the truth.

University of Pennsylvania anthropologist Samantha Cox, who was part of the team, said it was a difficult job. Even though his body had decomposed, because of Holmes's very specific burial requests, his clothes were almost perfectly intact, as was his ever-present mustache.

“It stank,” Cox said. “Once it gets to that point we can’t do anything with it. We can’t test it, can’t get any DNA out of it.” Instead, Cox and her colleagues had to use Holmes's teeth to identify him.

[h/t AP]

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