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 — 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, ‘Gee, 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, ‘Wait 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, W
aits 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 — 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.”
David Geffen had tried to convince Stewart to record a Waits song for years, and Stewart had always balked at the suggestion. Finally, a producer played the Rain Dogs cut for him, and something clicked. Stewart’s label, Warner Brothers, loved what Rod did with the tune and elected to release it as the box set’s first single. It was a smash. In early 1990, you couldn’t turn on a radio without hearing Stewart pining over Brooklyn girls who ride the train. While Stewart meticulously sanded down the song’s original rough edges, his interpretation is a decent one — it doesn’t approach Tom’s version, but it far exceeds Patty Smyth’s 1987 attempt.
A major rift developed between Stewart and Bob Seger, another extremely popular rocker of the seventies and eighties, over Waits’s train song. Seger insisted that he had been planning to record “Downtown Train” as a single himself, and that he’d told Stewart about his intention in confidence. At that point, Seger charged, Stewart had never even heard of the song. This led to a media war of words: Seger called Stewart a thief; Stewart returned fire by declaring that Seger was nuts. It took some time for tempers to cool on both sides.
Seger was a longtime Tom Waits fan. He once described a chance meeting he had with Waits to Rolling Stone . “I’m driving through Westwood [in L.A.], and I’ve got my Mercedes out there. I was working on a record, this is 1987 or ’88. I’ve got a Hawaiian shirt on; it’s real hot outside. I see Tom Waits, all in black, long-sleeved shirt and cowboy boots —it’s 90 degrees — and he’s walking through Westwood. So, I pull up next to him and I say, ‘Tom!’ I’ve got these sunglasses on, he probably thought I was with the CIA — car phone and everything — and he says, ‘Heh?’ and looks real startled, so I say, ‘It’s Bob Seger.’
“He says, ‘Ooh, hi, Bob.’ He jumps in the car and we start talking. I asked him what he’s doin’ and he says, ‘Uh . . . I’m walkin’.’ I’ve loved his stuff down through the years, so I start asking him all these dumb questions about his songs. I said, ‘In “Cold Cold Ground,” Tom, you say, “The cat will sleep in the mailbox.” Yesterday I went and bought my cat one of those fuzzy mailboxes. Is that what you’re talking about?’ He looked at me like I was from Mars. ‘No, no. My cats sleep under the house.’ So it goes on, this strange interlude, for about fifteen minutes. Finally, I asked if I could drop him somewhere and he says, ‘Tell you what, take me back where you picked me up.’ So I drove around a bunch of blocks, dropped him exactly where I picked him up and he says, ‘And, uh, I’ll just keep on walkin’.”14
In the end, Seger and Stewart recorded three Tom Waits songs each. Aside from “Downtown Train,” Stewart did a credible version of “Tom Traubert’s Blues” and an unsuccessful rendition of “Hang On St. Christopher.” Seger recorded heartfelt, meat-and-potatoes versions of “New Coat of Paint,” “Blind Love,” and “16 Shells From a Thirty-Ought-Six.”
Stewart’s “Downtown Train,” specifically, made Tom a hell of a lot of money — quite possibly more than any of his own recordings ever had. This, coupled with the settlement of the Frito-Lay lawsuit, brought him a degree of financial ease he’d never known before. He could now focus more intently on being a father and a husband. He could putter around the house. And he could take on any acting project that struck his fancy.
In fact, Waits’s acting career shifted into overdrive for a while. The puttering would have to wait. He was invited to play a parade of characters in a range of vehicles, from oddball indie flicks to big-budget prestige productions. Waits jumped right in. But, for all the fun he was having, it was still hard work. “You have to put your makeup on in the car and stay sober,” he told David Sheff. “It’s a lot of work to try and be natural, like trying to catch a bullet in your teeth.”15 On some level, Waits actually did consider it all a trick that he was able to execute once in a while. He didn’t even consider himself an actor in the strictest sense. “I wasn’t drawn to it,” he said to Hoskyns. “I was asked . . . I like doing it, but there’s a difference between being an actor and doing some acting.”16
It seemed clear, though, that to many film-industry players this difference was a negligible one, at least when it came to Tom Waits. Between 1989 and 1992, Waits appeared in eight films and one theatrical production. He played a hit man in the oh-so-hip New Wave western Cold Feet, starring Keith Carradine, Bill Pullman, and Sally Kirkland, and he stole the show. He also had small parts in the films Bearskin: An Urban Fairy-tale ; Queens Logic, with Joe Mantegna, Kevin Bacon, and John Malkovich (making Waits one degree in the Kevin Bacon game); the Chinatown sequel The Two Jakes, in which Waits was reunited with Jack Nicholson; The Fisher King, with Robin Williams and Jeff Bridges; and At Play in the Fields of the Lord, with Aidan Quinn, Kathy Bates, and John Lithgow, which was directed by Ironweed’s Hector Babenco. Waits also played a dj who is heard but never seen in Jim Jarmusch’s episodic film Mystery Train . Then Bill Pullman suggested to Waits that he tackle a purely comedic role. Pullman was set to appear in a L.A. stage production of Thomas Babe’s new work, Demon Wine, a tribute to French playwright Eugene Ionesco, and he thought that Waits could contribute fresh humor to the piece. Waits won the role and found himself a member of a terrific ensemble that included, aside from Pullman, Bud Cort, Phillip Baker Hall, Carol Kane, and René Auberjonois.
“I loved working with him. I loved talking with him,” says Joe Mantegna, one of Waits’s co-stars in the film Queens Logic . “Just hanging out with him. Tom was great. He’s so bright, and so talented. I remember one day we were just sitting in my trailer, just talking, and he was talking about an opera he was writing. He was going to go to Germany and do it. He’s such a renaissance kind of person.” Mantegna also was impressed by Waits’s lack of vanity as an actor, a rare and impressive attribute in the movie world. “The poster of the movie . . . he didn’t feel his role even warranted him even being in it. We were all saying, Tom, you gotta [pose for it]. He was really very self-effacing in that way. He certainly wasn’t driven by his ego. He was just driven by his work and what he did. I really, really, liked him as a person, let alone as a talent. I remember that fondly, working with Tom.”
As this period of abundant dramatic work drew to a close, Waits landed the most appealing role of all. The veh
icle was Bram Stoker’s Dracula, a new version of the classic horror tale, to be directed by Tom’s old friend Francis Ford Coppola. It was scheduled for a 1992 release. Before Waits was recruited for the project, the leads were announced, and the list was stellar: Gary Oldman, Winona Ryder, Keanu Reeves, and Sir Anthony Hopkins. Waits had his eye on the role of R. M. Renfield, a realestate solicitor whose relationship with the sinister count reduces him to raving lunacy and eternal slavery to the vampire. In Waits’s eyes, Renfield was a plum role, and he wanted it badly. He attempted to explain why to Mark Rowland: “I got to go into this whole lurid, torrid tale, which was a metamorphosis for me, to go into your own dark rooms. I just thought, ‘Oh God, I have to stop recording and go get a bad haircut and eat bugs. And then come back home again.’”17
Waits begged Coppola to let him read for the role, and in the end he snared it. From that point on, he lost himself inside Renfield’s dementia, never shying away from the physical ordeals the role entailed. He told Chris Douridas of Morning Becomes Eclectic that while he didn’t actually eat the insects, he did put them in his mouth — “like I gave them a carnival ride . . . like a fun house. I put them in the fun house and I let them move around in my mouth and then I brought them back out again. I didn’t actually murder them with my teeth. But I had a good time. I had some frightening moments when I was both frightened and exhilarated —being hosed down in an insane asylum . . . dressed like a moth. I also had to wear these hand restraints that were really painful. They were based on a design they had for piano players, actually, in Italy — to keep your hands straight. They were metal braces, and they corrected anything that your fingers may want to do that’s un-pianolike . . . [The device] was all metal, and [it had] these caps that went over your fingers, and [it was] really painful to your cuticles, and it looked really scary. That was the idea.”18
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