Tom Waits
"Step Right Up", Small Change
By Corinna Liscumb

In 1976 Tom Waits released his fourth record, Small Change, a jazz influenced composition, and also one of his only commercially successful albums. The song "Step Right Up" is an idyllic example of the trademark style Waits has of combining song and monologue.

Throughout Waits' career, he has held steadfast to the policy of not allowing any person(s) or corporations to use his songs for any type of advertising. He has been quoted as saying, "If Michael Jackson wants to work for Pepsi, why doesn't he just get himself a suit and an office in their headquarters and be done with it?" Waits doesn't hold back from criticizing his peers.

Waits has sued many a company for using variations of his music and "sound alike" singers. The first of these lawsuits took place in 1988 after Frito-Lay, having already been turned down by Waits, used a commercial ad reverberant to the obvious rhyming wordplay of his original song. Ironicaly, as "Step Right Up" parodied consumerism, it had been consumed. In September and October the jingle was played on over 250 radio stations. Waits was shocked when he heard it while appearing on a radio broadcast in Los Angeles. In November he sued both Frito-Lay, Inc. and Tracey-Locke, Inc., the advertising company hired by Frito-Lay to promote their new product, SalsaRio Doritos.

Alleging claims for voice misappropriation under California law and false endorsement under the Lanham Act, the case was tried before a jury in April and May of 1990 and found in Waits' favor. He was awarded $375,000 in compensatory damages, $2 million in punitive damages for voice misappropriation, and $100,000 in damages for violation of the Lanham Act. Attorney fees were also included. Both Frito-Lay and Tracey-Locke appealed the verdict which awarded Waits a total of 2.6 million dollars.

Highlights from an L.A. article after Waits won the Frito-Lay lawsuit:

"'Their defense was essentially that this was no big deal,' said the rough-and-tumble recording artist...'Instead of this being a fly on their forehead, it is now a bee in their ear.'"

"I feel like maybe we've made the path easier for others to follow. Now I have a fence around my larynxization," Waits said referring to his raspy singing style.

Indeed, most of the six jurors had not heard Waits' music before the trial. Nor did they recognize the scruffy-looking artist when they were first called into Judge James M. Ideman's courtroom for jury selection, according to juror George Chavez.

"The first time I saw him I thought this was a criminal case and he was a criminal, and when he left the court the first time, we thought he was getting away," said Chavez, 36, an auto sales representative from West Covina. "But now we love his music and him...His music is deep."

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