Waits's song “Step Right Up” on
Small Change
is a parody of huck-sterism, couched in the same angry language Waits used when he spoke to interviewers about art peddling. The mystery product that the song's persona is hustling does everything and nothing. It'll shine your car. Get rid of embarrassing stains. Lie to your wife. Pay off your credit cards. Walk the dog and pick up the kids at school. Make you six foot five, blond, and beautiful. Do your taxes. Return your tapes to the video store. And then, when you're done with it, it'll turn into a six-pack of beer and a pizza. Who in the world could take “Step Right Up” seriously as a sales pitch? Well, Frito-Lay did.
The snack-food giant actually hit on the notion that “Step Right Up” would make the perfect jingle to introduce their newest corn-chip flavor, Salsa Rio Doritos. A hot and spicy song for a hot and spicy chip. They couldn't use their old corporate spokescartoon, the Frito Bandito; he'd been forced to retire during the seventies when a Mexican group protested that he was nothing but a racist stereotype. So, since they couldn't have their Bandito, the Frito-Lay people wanted the next best thing: Tom Waits.
Representatives from Frito-Lay and its advertising agency, Tracy-Locke, approached Tom with the idea. Tom, of course, turned them down flat. This did not come as a surprise to David Brenner, Tracy-Locke's executive producer, because he'd once asked Waits to do a Diet Coke commercial. “You never heard anybody say no so fast in your life,” Brenner later remarked.
3
Tracy-Locke and Frito-Lay should have taken no for an answer and left it at that, but they remained smitten with the Tom Waits concept. They resolved to find a way of moving ahead that wouldn't require Waits's approval. It didn't take them long to decide that they could simply bypass
the recalcitrant musician. If he refused them access to the real thing, they'd do an “homage.” They'd come up with a song that sounded vaguely like “Step Right Up” and that extolled the virtues of their new chip. They'd hire someone to sing it in the signature Waits style.
A team of copywriters put together an ad that transmitted the feel of the song, Frito-Lay gave it a thumbs-up, and Tracy-Locke started to audition gravel-voiced singers. Stephen Carter was one of the hopefuls. The Dallas-based singer had been recommended to Tracy-Locke by a sound engineer who was working on the ad. A big Tom Waits fan, Carter had been covering several Waits songs for years with his band, Schwanz LaFanz (“Whistlin' Past the Graveyard” was a particular favorite). Over time, Carter had learned to do an uncanny Waits impersonation â at his audition, the Tracy-Locke people “did a double take.”
4
They were amazed at how much Carter sounded like his idol.
In fact, Carter was so good that the ad's musical director told him not to count on being hired. His vocal resemblance to Waits could trigger legal headaches. That same year, Bette Midler had sued the Ford Motor Company for $400,000 when it hired one of her backing vocalists to imitate her in a television ad. The case led to the establishment of the
Lanham Act,
which states that it is illegal to misappropriate a famous entertainer's vocal style. However, Tracy-Locke and Frito-Lay just couldn't let go of their winning idea. They hired the talented Stephen Carter and proceeded with caution, convinced that they were in the clear. After all, Ford had used one of Midler's songs; they were using an original jingle that was a “tribute” to Waits.
5
When it came time to record the jingle, they had Carter do two versions. The first, which Carter was led to believe would be the one used in the ad, evoked the spirit and the sound of Tom Waits, but it wasn't overt imitation. The second version was pure impersonation. Listening to Carter sing â “It's buffo, boffo, bravo, gung ho, tallyho, but never mellow / Try 'em, buy 'em, get 'em, got 'em!” â you'd have trouble believing that this wasn't Tom Waits selling his soul.
On the eve of the Salsa Rio Doritos campaign launch, Robert Grossman, Tracy-Locke's managing vice president, conferred with the firm's attorney, who informed him that there was still a risk of legal action in light of the Midler/Ford case. However, based on Grossman's description of the ad, the lawyer thought that the risk was slim because a musical style cannot be legally protected. Tracy-Locke, in turn, explained the situation to Frito-Lay and presented the snack manufacturer with both versions of
the jingle. When the campaign hit the airwaves in September of 1988, consumers were bombarded with the second version â the impersonation.
6
Waits himself first heard the commercial when he was at Los Angeles radio station
KCRW
to do an interview. Sitting in an office waiting to go on, he realized that he was being subjected to what he would afterward call a “corn-chip sermon” delivered Waits-style. At first he was floored. And then, the more he thought about it, the more enraged he became.
7
He would later testify that his anger “grew and grew over a period of a couple of days.” His position on the issues involved was well known, and now he was being made to look like a hypocrite. “It embarrassed me,” he said. “I had to call my friends [and tell them] that if they hear this thing, please be informed this is not me. I was on the phone for days. I also had people calling me, saying, âGee, Tom, I heard the new Doritos ad.'”
8
It was a nightmare.
Waits filed suit against Tracy-Locke and Frito-Lay in November, charging that the Doritos ad gave the false impression that he was endorsing the product and claiming that his persona had been misappropriated in violation of the
Lanham Act
. Waits did not include Stephen Carter in the suit because Carter had only been paid scale for his participation. In fact, Carter became one of Waits's strongest witnesses. He felt badly about his part in the fiasco and wanted to redeem himself.
The case went to court in 1990, and at the outset the jury didn't know what to make of the plaintiff. One juror admitted when it was all over that he'd initially thought that he was there to participate in a criminal trial and Waits was the defendant. But, after a month of duty, the ladies and gentlemen of the jury grew fond of Waits and became fans of his work.
9
The defense attorneys did their job and tried every possible means of extricating their clients from the mess they had created for themselves. Suggesting that Waits was not covered by the
Lanham Act
because he was not as famous as Midler, one Frito-Lay attorney stated, “A professional singer's voice is widely known if it is known to a large number of people throughout a relatively large geographic area. A singer is not widely known if he is only recognized by his own fans, or fans of a particular sort of music, or a segment of the population.” The defense went on to insist that the extent of celebrity also determines the extent of awarded damages. The court struck down that argument on the grounds that it would leave artists who did not rank as superstars vulnerable to misappropriation. Furthermore, the court stipulated, it was a moot point because, “the great weight of evidence produced at trial indicates that Tom Waits is very
widely known.” The jury was instructed to deliberate on the question of whether “ordinary consumers” would be “confused.” Would these consumers naturally conclude that it was Tom Waits singing the commercial and endorsing Salsa Rio Doritos?
10
The four-week trial came to an end when the jury decided unanimously that Waits had been wronged. So convinced were the jurors of the fact that Waits had been harmed by the actions of Frito-Lay and Tracy-Locke that they awarded him a grand total of $2.475 million in compensatory damages. The defendants appealed several times, but the decision was not overturned. It took years for Waits to see a penny of the settlement, but that was okay. He had been vindicated.
Although he'd won the corn-chip battle, Waits still had legal problems of another variety to contend with. The repercussions of his relationship with former manager Herb Cohen persisted. For a long time, Cohen had been claiming that Waits still owed him money for the original Elektra recording sessions. “[Waits's] business manager called me up,” recalls Bones Howe. “He said that [Cohen and Mutt, his brother and business partner] were trying to say that they paid the studio costs and they wanted to recoup those from Tom. I said, âWait a minute. Asylum paid the studio costs. I have the files on every record we made, so if you want the files, you can have them.' So I did help Tom with that lawsuit against Herb. And rightly so. I don't know what deal he made on the publishing or all the rest of that . . . but that kind of thing is so typical of Herb and Mutt. I couldn't let them get away with it. [But], I must say, Herb made a great contribution to Tom's career as far as his stage persona and the production of his stage work and all of that goes. His live performance. Herb really did have a lot of influence and did help Tom. But I guess there's a time when you outgrow all of that.”
Later, lawyers for Waits and Cohen would lock horns over several other issues. Cohen planned to release another compilation of the Asylum tracks, but Waits was able to block that project. In the early nineties, Waits filed suit against Cohen because Cohen had allowed a Screamin' Jay Hawkins remake of “Heartattack and Vine” to be used in a British Levis jeans ad. Waits sued and Cohen countersued. While the court ruled in favor of Waits, he was awarded only a fraction of the financial compensation he'd requested. However, he could take solace in the official apology he received from Levi Strauss and Company, which took the form of a full-page ad in
Billboard
magazine.
Tom did taste defeat after one legal skirmish with Cohen. In possession
of that series of rough demos Waits had recorded for Bizarre/Straight before signing with Elektra, Cohen decided to release them. The series contained a few interesting rarities, but for the most part it was made up of rough drafts of songs that Waits had later improved upon. Waits was horrified at the prospect of their release, but in the end there was nothing he could do about it. Cohen owned those demos. In 1991,
Tom Waits: The Early Years
was released, and less than a year later, a second volume appeared. Says Jerry Yester, “Those Bizarre/Straight things that Herbie Cohen released, those were like what I did in my living room, recording just to hear the songs. Tom was so pissed off when those things came out. And they shouldn't have been released. Not without his permission, anyway.”
In his less pissed-off moments, Waits chalked it up to experience. He said to Mark Rowland, “I must admit when I was a kid I made a lot of mistakes in terms of my songs. A lot of people don't own their songs . . . If John Lennon had any idea that someday Michael Jackson would be deciding the future of his material, if he could I think he'd come back from the grave and kick his ass. And kick it real good, in a way that we would all enjoy. I have songs that belong to two guys named Cohen from the South Bronx. Part of what I like about the last three albums is that they're mine.”
11
During the late eighties and early nineties, Waits may have become better acquainted with his legal representatives than he'd ever hoped to be, but these could hardly be described as “Frank's Litigious Years.” Other things were in motion. Tom and Kathleen moved their family to a small town in remote Northern California. (Heading north made sense to Tom because, as far as he was concerned, everything south of L.A. was just more of L.A.) A realtor had showed them a house, they'd sat on the porch, a local train had put-putted past, the engineer had doffed his cap and waved; Tom and Kathleen had enjoyed a glass of wine, a bluebird had come and perched on Tom's shoulder, a deer had grazed nearby. They were enchanted with the house, and so they bought it. How could they have known? As soon as they moved in, Tom later explained, the train stopped running and the wild creatures stopped scampering; a bypass was constructed close by, and the resulting traffic noise was equal to that at the corner of 50th and Broadway during Friday rush hour.
12
The Waits clan was forced to sell their dream house and retreat even farther into the hinterland. They settled in again, choosing a house that was fifty miles away from the nearest McDonald's, out where paved roads were a luxury. Petaluma County.
Borrowing a line from Humphrey Bogart's character in
Casablanca,
Waits explained the motivation behind this radical transplant in typically dead pan fashion: “I came for the water. I was misinformed.” Asked whether he missed big-city life, he had to admit that he did crave the urban sensory overload at times, but he was making do. “Now what I like to do is get three radios, turn 'em up full blast and imagine I'm back in town. There's my thrill. Sirens really kill me; I get all choked up.”
13
Petaluma County was a great place to raise a family â plenty of room for the kids to stretch and grow, good schools, little crime. Heaven on Earth. Waits was finally able to build his own recording studio. The privacy was intoxicating. Tom Waits had become virtually unfindable. He still is, and he loves it. If anyone tries to determine his coordinates, he becomes downright grumpy, and he's likely to snap, “About an hour or so out thatta way” or, “What, are you taking a census?”
In late 1989, Waits received an unexpected career boost. British superstar Rod Stewart was putting together a box set of recordings tracing his long and illustrious career. Stewart had started out as the vocalist for the Jeff Beck Group and then for the Faces. With the 1971 release of his solo album
Every Picture Tells a Story,
Rod Stewart became a household name. The album hit number one in both Britain and the United States, and it remains an all-time rock classic. Eventually, however, Stewart's bluesy, textured offerings devolved into shallow commercial fare like “Love Touch,” “Do Ya Think I'm Sexy?” and “Tonight's the Night.” For his box set, Stewart wanted some new songs (he needed new singles), and he chose to do covers. One was The Isley Brothers' jumping Motown nugget “This Old Heart of Mine” (done as a duet with the youngest Isley, Ronald, who hadn't even been a member of his brothers' band when the tune hit the charts in 1966); another was Tom Waits's “Downtown Train.”