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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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A New Law Could Make It Harder to Access Your Favorite Florida Beaches
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Florida boasts roughly 8500 miles of coastline—the most of any state in the lower 48 [PDF]—but some of those sunny beaches could soon get a lot harder to access. As Coastal Living reports, a state law passed in 2018 gives private landowners the right to close almost the entirety of their beaches off to the public.

Florida law once required the state to "ensure the public's right to reasonable access to beaches." That policy left the state free to sell miles of coastal land to big tax generators like condos and hotels, while still keeping the waterfront accessible to local beach lovers and the millions of tourists who visit the state each year.

Sixty percent of Florida beaches are now privately owned. Under the new law, tides will turn in favor of those private landowners, allowing them to restrict access to any part of the beach above the high tide line. Starting July 1, they will be able to decide who does and doesn't get to set foot on their oceanfront property.

An online petition campaigning to keep those beaches open to all has already garnered more than 52,000 signatures. If that effort doesn't succeed, local governments will still have the power to remove restrictions from privately owned beaches, but they will need to petition a judge to do so. Any city ordinances about beach access passed prior to 2016 will also stay in effect.

Florida isn't the only coastal state where the question of who owns the beaches is up for debate. Wealthy homeowners in California have been known to hire security guards to remove people from the beaches in front of their houses, despite the fact that beaches in the state are public property. The courts have largely sided with the masses, though: In 2017, a billionaire landowner in northern California was ordered by a state court to restore public access to the beach in front of his property, which he had previously closed off with a locked gate.

Even with the new law, the portion of Florida shoreline that falls within the tide will always belong to the state. But that may not help anyone who has to traverse private property to get there.

[h/t Coastal Living]

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Some of Your Favorite Movies, Books, and Music Are About to Enter the Public Domain
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In America, copyright terms have serious staying power. Thanks to several laws involving, in part, Mickey Mouse, the U.S. government has extended copyright protections for decades past what other countries require, effectively keeping any work published after 1922 firmly out of the public domain to this day. That means you can’t legally use images and artistic works without permission from (and probably payment to) the owner of the copyright. But soon, a new batch of work is set to enter the public domain, marking the first time that has happened in decades, according to The Atlantic. That means you’ll be able to use, remix, and even sell those works without getting into legal trouble.

In most other countries, literature, art, films, music, and certain other creative works are under copyright for the life of their author plus some number of years (in many places, it’s 50 or 70 years). For instance, people in Canada and New Zealand became able to use the works of artists like Woody Guthrie without worrying about copyright infringement in 2018.

But Americans are still waiting to use works published in the 1920s. In the U.S., a 1976 law extended copyright protections on everything created between 1923 and 1977 (and beyond) to 75 years, putting work published in 1922 into the public domain in 1998. Then, a 1998 law extended those copyright terms further to 95 years after first publication, protecting anything made after 1922. So copyrighted work from 1923 on wouldn’t enter the public domain until 2019 or later.

All this has kept archival resources like the Internet Archive and Google Books from releasing digital versions of old books, kept TV shows from freely using common songs (like, until recently, “Happy Birthday”), and otherwise stifled cheap and easy access to older works of art and culture.

The time has finally come for works from 1923 to enter the public domain in the U.S. This will include books like Virginia Woolf’s Mrs Dalloway in Bond Street and Robert Frost’s New Hampshire, which includes the poem “Stopping by Woods on a Snowy Evening”—a poem that, despite its popularity, has been strictly controlled by his estate up to this point. Other books from authors like Aldous Huxley, D.H. Lawrence, e.e. cummings, and H.G. Wells will also be released into the public domain, as will plenty of films and sheet music. Considering that It’s a Wonderful Life only became a holiday classic when it entered into the public domain due to a clerical error, plenty of other forgotten works might become classics once they are released for royalty-free use next year.

In the meantime, check out some films that are already in the public domain, like Charlie Chaplin’s The Gold Rush. And mark your calendar: Mickey Mouse could be headed to the public domain as early as 2024.

[h/t The Atlantic]

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