There was a time in the late 80s when Frito Lay wanted Tom Waits to endorse Doritos. They wanted it real bad. They wanted it so bad, in fact, that they hired a guy whose specialty was to sound exactly like Tom Waits, since Waits, to put it lightly, wasn't fond of doing endorsements himself. The impersonator, Stephen Carter, nearly didn't get the gig, as the producers thought that he sounded a bit too much like Mr. Waits, and that the resemblance could land them in hot, hot legal water. Somehow this initial comprehension of the law ended in a tepid reading of their forthcoming courtroom meeting, and so Frito Lay proceeded to emulate, record and advertise Doritos to their heart's content.
I get it all the time, and they offer people a whole lot of money. Unfortunately I don't want to get on the bandwagon. You know, when a guy is singing to me about toilet paper – you may need the money but, I mean, rob a 7-11! Do something with dignity and save us all the trouble of peeing on your grave.
In a supremely ironic twist, the song that Frito Lay wanted to emulate was the notable anti-consumerist track "Step Right Up". The lyrics are essentially a conglomeration of various sales pitches from a carnival barker, smashed together to create the impression of an absurd advertisement for everything and nothing in particular.
Perhaps there was some self aware exec at the ad agency, instrumental in recommending the anti-ad song as the perfect template to base a real ad song off of. What to call this? Ironic? Post ironic? Post…post… anyway, Tom Waits sued, Frito Lay denied, Stephen Carter, Tom Waits second biggest fan (after the ad agency exec that hired him, presumably), became star witness in the false endorsement/voice misappropriation case and Waits won. Frito Lay appealed. Tom Waited (eh) and beat eventually Frito Lay, well into the next decade. And though he may not have seen any money from the vindication, the public in turn got some great quotes regarding Waits' thoughts on the matter.
"I haven't seen a dime. These things go on forever and forever. Never get involved in litigation. Your hair will fall out, your bones will turn to sand. And it will still be going on. "It was like throwing a rock through a window-but you wait for five years to hear the sound. Litigation is like picking up a glass of water with a prosthetic hand. It's very frustrating, and you'll never get it to your lips. But when you have to, you have to. If somebody burned your house down, you'd have to do something about it."
But he won against big chip! Tom Waits:
Yeah, we nailed 'em. It was David and Goliath… They were lame. The problem with a big company like that is that its hands don't talk to its feet, and nobody knows what anyone else is doing. In this case, it was an ad agency that hired a fan of mine actually, in Texas. And they paid him like 60 bucks to come in and do an impersonation of me. Then, a little later, I was doing a radio interview, and the guy says we have to break for a commercial, so he punches that ad in… I said that guy sounds just like me. I mean, there's a lot of things I can't remember, but I think I would have remembered doing that. I had an excellent attorney that went to bat for us.
Two and a half million bucks. Spent it all on candy. My mom told me I was foolish. I've always been foolish when it comes to money
Hopefully these quotes are entombed the annals of legal textbooks on copyright somewhere.
WAITS V. FRITO-LAY, INC., 978 F.2D 1093 [case text]
