The vast majority of musicians who end up in court are there for behavioral or musical copyright issues, but when Tom Waits went to court in April 1990, he was going head-to-head with a different kind of adversary: Frito-Lay, the makers of Doritos chips. More specifically, Frito-Lay was pushing their new product, Salsa Rio Doritos (a delicious snack, sadly discontinued).
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The legal battle was a small blip in Waits’ lengthy career, but the circumstances held far-reaching significance. Not only did the lawsuit confirm Waits’ legacy as an artist. But it also created a new precedent for advertisers who try to capitalize on a famous figure’s visual or sonic likeness to sell their products.
The early 1990s court case also likely set the record for the amount of times “Tom Waits” and “Doritos” were said in the same sentence.
It All Started With An Unexpected Run-In With Himself
On October 3, 1988, Tom Waits was doing an interview with a Los Angeles radio station when he heard a familiar voice take over the airwaves on commercial break: his own. Waits sat in the studio as someone who sounded uncannily like him boasted about Frito-Lay’s new Salsa Rio Doritos in a musical parody of Waits’ song, “Step Right Up.” “It’s buffo, boffo, bravo, gung ho, tallyho, but never mellow,” the gravelly voice said. “Try ‘em, buy ‘em, get ‘em, got ‘em!”
The most pressing issue of this otherwise innocuous commercial selling flavored corn chips was the fact that Waits never recorded that ad (that he could remember, anyway). Yet, the similarity was so close that Waits wondered if he had agreed to do the commercial while drunk. It didn’t take long to brush off that idea. Waits had already committed to never doing advertisements again after booking a gig for Butcher’s Blend dry dog food. “I was down on my luck,” Waits once said about his decision. “And I’ve always liked dogs.” Dog person or not, Waits was done with the advertising world.
So, when he heard the Doritos ad, Waits said, “It embarrassed me. Part of my character and personality and image that I have cultivated is that I do not endorse products. It’s like a fistula for me. If you subscribe to your personal mythology, to the point where you do your own work, and then somebody puts decals over it, it no longer carries the same weight” (via Ultimate Classic Rock).
Tom Waits Goes Head-To-Head With Doritos In April 1990
On April 10, 1990, the Tom Waits’ case against Frito-Lay went to court. According to court documents, Waits specifically sued the snack manufacturer for “voice misappropriation and false endorsement.” To Waits’ credit, the similarities weren’t lost on the Frito-Lay executives. In fact, the decision to include Waits personator and Texas musician Stephen Carter was met with some resistance because his impression of Waits was too good. Nevertheless, the ad agency went forward with their idea, fingers crossed that it wouldn’t be too much of an issue.
In the end, the executives who worried over this ad choice were right. The court based its initial ruling against Frito-Lay on the legal precedent of Midler v. Ford Motor Co. In this lawsuit, iconic singer Bette Midler sued the auto manufacturer for using a Midler impersonator in their ads in the 1980s. Frito-Lay’s legal team argued that Waits wasn’t nearly as famous as Midler and therefore had none of the same legal protection (talk about putting Salsa Rio salt in the wound for the musician who has to hear the people who used his voice say he “wasn’t famous enough” to count).
Luckily for Waits, the court rejected the defendant’s claim, asserting that Waits was, in fact, very famous. The lawsuit ended with the court awarding Waits $2.6 million in compensatory damages, punitive damages, and attorney’s fees. For some context, that could get Waits a little over half a million bags of Doritos.
Photo by Albert Olive/EPA/Shutterstock
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