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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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This Just In
How Much Does a Missing Comma Cost? For One Dairy in Maine, $5 Million
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Copy editors aren’t the only ones who should respect the value of the Oxford comma. Since 2014, a dairy company in Portland, Maine has been embroiled in a lawsuit whose success or failure hinged on the lack of an Oxford comma in state law. The suit is finally over, as The New York Times reports, and die-hard Oxford comma-lovers won (as did the delivery drivers who brought the suit).

The drivers’ class action lawsuit claimed that Oakhurst Dairy owed them years in back pay for overtime that the company argues they did not qualify for under state law. The law reads that employees in the following fields do not qualify for the time-and-a-half overtime pay that other workers are eligible for if they work more than 40 hours a week:

The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of:

(1) Agricultural produce;

(2) Meat and fish product; and

(3) Perishable foods

Notice that it says the “packing for shipment or distribution” and not “packing for shipment, or distribution of.” This raised a legal question: Should dairy distributors get overtime if they didn’t pack and distribute the product?

The case eventually made its way to the United States Court of Appeals for the First Circuit, which ruled that the lack of comma made the law ambiguous enough to qualify the drivers for their overtime pay, overturning the lower court’s verdict that the state legislature clearly intended for distribution to be part of the exemption list on its own.

In early February, the company agreed to pay $5 million to the drivers, ending the lawsuit—and, sadly, preventing us from ever hearing the Supreme Court’s opinions on the Oxford comma.

Future delivery drivers for the dairy won’t be so lucky. Since the comma kerfuffle began, the Maine legislature has rewritten the statute. Instead of embracing the Oxford comma, though—as we at Mental Floss would recommend—lawmakers decided to double down on their semicolons. It now reads:

The canning; processing; preserving; freezing; drying; marketing; storing; packing for shipment; or distributing of:

(1) Agricultural produce;

(2) Meat and fish products; and

(3) Perishable foods.

Come on, guys. What do you have against the serial comma?

[h/t The New York Times]

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environment
California's Proposed Straw Ban Won't Actually Threaten Restaurant Employees With Jail Time
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Drinking straws are easy to find at eateries, but not so much in recycling bins. To curb pollution, California lawmaker Ian Calderon introduced a bill in January that would reduce plastic straw use in restaurants. Thanks to the measure's wording, it caused an uproar, Munchies reports. As it currently reads, restaurant employees would face $1000 fines or jail sentences of up to six months if they provide a straw to a customer unasked.

Calderon, the majority leader of the California State Assembly, says that the bill wasn’t meant to be so harsh. He chalked its language up to miscommunication, explaining to The Washington Post that the California Office of Legislative Counsel drafted the bill into a state health code section with jail penalties. They didn’t have time to fix it, and Calderon planned to amend the bill’s wording before it reached a committee. (He still intends to remove its criminal penalties.)

Backlash aside (one Republican politician called for people to mail Calderon their straws), Calderon simply wanted to introduce a measure that required sit-down restaurants to adhere to a straws-upon-request policy. Fast-food restaurants, cafés, and delis wouldn’t have to adhere to the guideline.

“We need to create awareness around the issue of one-time use plastic straws and its detrimental effects on our landfills, waterways, and oceans,” Calderon said in a statement. “AB 1884 is not ban on plastic straws. It is a small step towards curbing our reliance on these convenience products, which will hopefully contribute to a change in consumer attitudes and usage.”

Straws play a small—yet undeniable—part in our world’s ever-growing plastic waste problem. They typically wind up in landfills, and can end up in the ocean if proper disposal methods aren’t followed. This harms marine life, as fish and other creatures can mistake bits of broken-down straws for food.

Cities in California, including Manhattan Beach, San Luis Obispo, and Santa Cruz, have implemented their own versions of a straw ban. Berkeley and Los Angeles might soon follow suit, according to the San Francisco Chronicle. As for Calderon’s bill: It still needs to be revised, voted on, and approved. So nothing’s set in stone (or plastic) for now.

[h/t Munchies]

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