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In Episode 8, I finish the discussion of the copyright infringement case between Roger Dean – famous for his 70s album covers – and James Cameron (and other producers of the movie “Avatar”) with James Cushing of the Law Office of Faye Riva Cohen in Philadelphia, PA.
Then we talk about two ways in which bands are businesses:
- Bands need trademark protection for their names
- Bands need partnership agreements.
Here is a lightly-edited transcript of the podcast episode:
Anthony Verna:
Welcome to the Law and Business podcast. Once again, we have Jim Cushing. How are you doing, Jim?
Jim Cushing:
Greetings everyone and I’m well, thank you
Anthony Verna:
Jim, once again, tell everybody how to find you.
Jim Cushing:
All right. Uh, Jim Cushing. Uh, but I think, uh, my professionally on Google, you’ll find me as James W. Cushing. My law firm is the law office of Faye Riva Cohen. That’s F as in Frank, A, Y, E R I V as in Victor, A Cohen and my email address is jwc@fayerivacohen.com. And (215) 563-7776 is how you reach me. And I keep a blog called judicialsupport.wordpress.com where I talk about law and a smattering of religion and music and some other things.
Speaker 2:
All right, so last time you were on, we were talking about a copyright infringement case and it involved, the album designer for I would say your favorite band. Yes.
Jim Cushing:
Yes, correct. My favorite band is the progressive rock or a prog rock band, Yes. But he’s also the cover artist for other related bands like Asia and A Gentle Giant. And he’s done other things like architecture and stage designing.
Anthony Verna:
So, as we had discussed, he filed a lawsuit against James Cameron and other production companies involved in making Avatar, basically claiming that the design, the mise en scene was taken from a lot of his artwork. And ultimately the federal court threw the case out on a motion to dismiss because the ability to make that claim that the mise en scene copied his artwork was really not able to be made.
Jim Cushing:
Right. I don’t think there’s any doubt that, either consciously or subconsciously, James Cameron had Roger Dean’s paintings in his mind when he made Avatar. They’re very, very similar. Anthony could probably explain it, expanded on it more than the last time we did this, but I don’t think it meets the muster of a copyright infringement or anything like that, but they are very, very similar. And as a Yes man, as a Roger Dean fan, I can tell you from reading all the websites, there is lots of great wailing and gnashing of teeth over this decision. But Roger Dean posted a, I’m a friend of quote unquote on Facebook of Roger Dean… And he posted an update a couple of weeks back about the case and lamenting the fact that he lost and he thinks that James Cameron clearly uses work and et cetera.
But he had a certain number of days to file an appeal. So, I decided to hold off until writing an update until I saw what had what happened in terms of the appeal. And the today I checked the dockets and discovered that a few weeks back, a couple of weeks back, Roger Dean and James Cameron decided to conclude the case. Roger Dean gave up his right to appeal and that the adverse decision about any sort of about any case against Jim Cameron regarding Avatar and the copyrights. And in exchange for that, James Cameron agreed not to pursue Roger Dean for any attorney’s fees or costs or anything like that. So, the case is now over and completed much to the chagrin of Roger Dean and Yes fans the worldwide about this way, what we believe to be a… I don’t know. I was going to say grave injustice, but I guess according to copyright law it is not.
Anthony Verna:
That’s fine. Well, yeah, I mean as we discussed last week, it’s, it’s a matter of… I was kind of surprised that they didn’t really amend the pleadings to discuss how it was… how each element may have been copied. And so therefore they kind of went with a very broad general copyright infringement claim. And the court said, you can’t do that because if there’s a dragon, for example, dragons themselves aren’t works that fonder copyright law, but your expression of a dragon would be, and they never took the pleading to that particular level to be honest with you.
Jim Cushing:
Yeah. I don’t know. I never spoke to their attorneys and I I’ve met Roger Dean several times. As I said before, he doesn’t know who I am, but I’ve met him several times at festivals and so on. And, you know, he was reluctant to talk about the case and, and in fact his update on his Facebook page last week said that he acknowledged that he’s been sort of silent on this issue, because of the advice of the both of his lawyers, probably wise. So I don’t really have any insight beyond what the complaint says really.
Anthony Verna:
So with the stipulation and he’s not appealing. So, this case is over and dead.
Jim Cushing:
Yeah. Hmm. Perhaps on the advice of the podcast we did last time, I don’t know.
Anthony Verna:
Well, if he’s listening, Hi there. So, being a, a fan of the bands that you are, they’ve had multiple lineups over the years and certainly what to call a particular band with a particular lineup can be a tricky situation. Certainly I know the Beach Boys have had problems. At one point there was a band called the Beach Boys and a band called The Beach Boys Experience touring. Go ahead and I’m going to let give you the stage again and just tell me a bit about some of these bands that you’re fans of and their lineup changes and maybe some of their name issues.
Jim Cushing:
Sure. Well I was thinking more specifically about Yes and Asia because I feel they’ve had some very public legal issues. And I think one of the things that sort of tends towards an issue that like this where with name usage in bands. And this probably sounds obvious, but it’s bands that have a lot of personnel changes, one, and two, I think bands where you have one or two or three people who view themselves as the core of the band. Cause you know, like a band like Jethro tall, probably 30 people have been in that band. But no, hardly anyone thinks they’re more important than Ian Anderson except for maybe Martin Bari. But even he doesn’t when he left recently.
Anthony Verna:
Certainly fans of the Red Hot Chili Peppers can talk about the very various lineup changes. I forget the name of the first guitarist. And John Frusciante who was in there for a short time versus whoever is in there right now. I’ve no idea Hillel, was the name of the first guitarist who passed away and the various different stages. But, most people of course see the Red Hot Chili Peppers as Anthony Kiedis and Flea and anybody else seems a little interchangeable as well.
Jim Cushing:
Right. So what happened with Yes, and actually with Asia too, I’ll give you a little brief history of each, is that they each had had eras of the band where someone else besides you might think is the prime mover in the band as the driving force. So Yes, actually, Yes, because they’ve been around for 45. It’s actually more than that. 46 years, I guess. Is that they’ve had two brush ups with the law when it comes to the naming issue. Some people might not know that Yes is a 1960s band, had their heyday in the 70s as a progressive rock band. And they more or less broke up after 1980 when they had… I don’t know if it was good or bad, but they had the Buggles, the band who did the ”Video Killed the Radio Star”, started the first video on MTV, right.
The singer and the keyboards for the Buggles joined Yes. Which is sounds crazy, but that’s actually happened. And in place of John Anderson, a long-time singer and founder and Rick Wakeman, probably their most famous keyboard player. And as it turns out, the Buggles have the same manager and were a singer, keyboard player duo, and they’re in the same studio and they both had need of the others. So, they joined, and it became Yes. And after that, Yes broke up and were seemingly with nothing. Yes seemed to be gone because Steve Howell, who was in the guitar player was off starting Asia. And John Anderson became a solo artist and Rick Wakeman became divorced and became a solo artist. I mentioned that because he lost a lot of money in divorces in the 80s, and you know, and sort of Chris Squire and Alan White would you believe.
And it was in recently in the news, they might try to revive this sort of as an archival type thing. But Chris Cornell joined forces with Jimmy Page and in theory, Robert Plant and maybe John Paul Jones, and formed a band called XYZ. At this point, only demos that exist o of Page, White and Squire playing some stuff and all that material has since been used in their respective bands but right. So Yes sort of cease to exist. And by 1982, Squire and White recruited the original keyboard player Tony K from Yes and a this guy called Trevor Rabin from South Africa, to create a band called Cinema. Which you know, obviously sounded Yes, cause it had three guys and Yes, and this new guy who was a sort of an eighties power chord Journey type guitar player. And the record company said, you know, you guys are good singers, but you really should get a lead singer.
And they racked their brains. And Chris Squire said, you know, I’ll bring up my friend John Anderson and, John Anderson said this, there’s degrees of great music, I’d like to sing on it. And I think that the consensus was at that point, well if you have Chris Clark, John Anderson, Tony K and Allen White, this is Yes and, and Trevor Rabin being a constant businessman, I don’t think as an artist, I don’t think he liked the idea, but you know, Yes, it’s going to sell better than some unknown band called Cinema. Yeah. And so, it became, Yes, and this is all the while Asia is hitting the top of the chart with “Heat of the Moment” and other sorts of things. And um, and Steve Howe, sitting in Asia said, “Hey, wait a minute. I thought yes, was gone. I specifically remembered this band breaking up.” And but it didn’t. And so, Steve Howe took issue with the fact that Yes is being used as a name and their back catalogs being used. I don’t think he minded the royalties from the back catalog, but he minded they’re using the music and there was a legal dust-up with Steve Howe and with Yes, and it was in 1983 and, and by 1984 there was… I hope no one is judging me and the fact that I know all this nonsense that you’re saying So you know, by 1984 everybody who’s ever been in Yes. Which was that point, it was like 12 guys I guess, or nine guys or 10 or 12 guys. They all signed a licensing agreement in 1984, as to who was in, who is out, who could use what and when. And Steve Howe and in that sort of settlement got use of the famous curly Yes logo, which is use now, the one that’s really thin. I don’t know if anyone knows what that looks like. I’m sure Anthony could put a picture of it on this thing. But the famous logo, Steve Howe got that and I’m pretty sure, although I’m not 100% positive, I’m pretty sure he got use of using Roger Dean as the as the artist because Yes, without Steve Howe has never used Roger Dean.
So he got that. So, and then the name went with the guys in the band and there were certain rules regarding who could use the name when. So that was the first legal dustup and wouldn’t you know it five years later, 1989 or 88 maybe four years later they had this document became the centerpiece of a legal issue that arose because John Anderson, when he rejoined with Cinema, had his two record deal. They made 90125 with “Owner of a Lonely Heart”. And then again Big Generator. The second one in 87. He became sort of disinterested in pop music or not being in control of the band cause Trevor Rabin was now in control. Like I said in the beginning, you had this new guy, sort of the prime mover, Trevor Rabin. John Anderson was the seventies prime mover and well, he was upset that he could no longer control the band, I guess.
And he wanted to make different kinds of music. And that was unreceptive in the band and the in the music and in the record company. So, he and three other, Yes compatriots, namely Bill Bruford, Rick Wakeman, Steve Howe all decided to form a band. And you know, when you have those 4 guys who made, you know, Fragile and Close to the Edge and big Yes music, they’re like, well, what are we going to call ourselves? And that became a problem. Right. So, they didn’t call themselves, Yes. They call themselves, sort of coincidentally like a law firm name. They call themselves the Anderson Bruford Wakeman Howe. Yeah.
Anthony Verna:
Or really more like Crosby, Stills, Nash and Young. Although that sounds like a law firm too frankly.
Jim Cushing:
Yeah, right. ABWH this is what everyone started calling him because they didn’t want to say they weren’t Yes, because they kind of were, but they also couldn’t call themselves. Yes. And Yes, it was existing doing other things. They were, believe it or not, were trying to recruit Roger Hodgkins from Supertramp to replace John Anderson at that point. And they sort of rankled Yes when ABWH started rearing its head and the publications, because the average public person like Rolling Stone magazine or whatever, MTV, “Oh this is the new Yes.” and “Oh, this is the new Yes album.” and the Yes of the existed with Chris Squire, Alan White, Trevor Rabin Tony K, they’re like, “No, no, no, no, no they’re not Yes. There’s some weird imposters. We are Yes.” And then there was litigation that was raised in the Central District of California in 1988 or so indicating, this release that the general release they signed said sort of barred ABWH from even mentioning Yes.
From using their catalog from cause they thought it’d generate confusion, which was I guess, Anthony, is a normal, normal standards.. So and out of that, cause John Anderson basically said I didn’t leave Yes. I just had a two-record deal. I never left. I just finished the deal. So, I’m doing something else right now. And Yes obviously had a different opinion of that and as to who could use the name and what. So, because I think the promoters were using the tour called an evening of Yes Music. This was the name of the tour for ABWH.
Anthony Verna:
That’s creative. I’m going to give him points for being creative there.
Speaker 3: (14:19)
And well actually what actually was the even more creative, Anthony, is that the, the final name of the tour when they also made a live album of this name too… An Evening of Yes Music Plus cause they’re playing new material to this, technically not Yes. And so, that became obviously the sort of the locust for this confusion and Roger Dean of the state setting in their artwork too. And ultimately, it was resolved so that Yes could stay Yes. And do whatever they’re doing, which was not much of anything, actually, and ABWH had the first had to continue with using that as their name, although they could, could refer to their pedigree as Yes musicians and called a tour of Yes music, but they could not call themselves Yes. It was sort of unsatisfactory, satisfactory resolution because by 1990 would you believe ABWH and Yes merged into one giant eight man mess that went on tour in 91 for some fantastic shows.
Anthony Verna:
So basically everybody wound up at home anyway.
Speaker 3: (14:19)
Yeah, that’s right. But yeah, but there was litigation how to handle that. And since then, the name and the logos and stuff have been negotiated. Do I think it was another one in 97 another agreement, cause Rick Wakeman left in 96 and so it goes back and forth, with that Yes, there’s always now John Anderson’s out and they’re touring a totally different lineup, so I don’t know what the legalities of that is, but now Asia has a very interesting situation where it’s not like this sort of back and forth tug and pull with all the different members trying to do something all different. Asia started out as a progressive rock supergroup probably much of the chagrin have a lot of the progressive rock bands that their album turned out to be not quite as progressive as they were hoping. But Steve Howe of Yes was in it. Geoff Downs of the Buggles and Yes was in it. Carl Palmer of Emerson Lake and Palmer ELP was in it and as a drummer and John Wetton of was bass and singer. He was from King Crimson, Roxy Music Renaissance, Uriah Heep, UK Family fun bunch of stuff. And they made a couple of albums with Roger Dean As an artist and they made three albums, Steve Howe, not on the third. He was in GTR with Steve Hackett at that point. And they were very, very successful albums. But John Wetton had it turned out as a drinking problem and they couldn’t get along and…
Anthony Verna:
Rock musician with a drinking problem…
Speaker 3:
Correct. Well, he recovered. He’s now in recovery, which is good. But they made his first three albums in the early to mid-eighties, and then they didn’t do much of anything. But then by the early nineties, apparently there was some sort of groundswell, I guess, for Asia music. I don’t know. Jeff Downs encountered this guy called John Payne. I don’t know where he came from, but he’s a bass player, singer. And he said, do you want to play some music together as Asia and Jeff Downs, who was at that point, the owner of the name said, sure. Well let’s do it. And they recruited other sets of musicians and the original guy, John Wetton was sort of unaffiliated at this point, except for I think a brief tour in the mid-nineties. But other than that, Carl Palmer, Steve Howe would make guest appearances on albums like playing one or two songs?
I think there was a tour in 92 for the Aqua album where Steve Howe played half the show, only playing his own material. Then he’d leave the stage. Which is strange. So, the original guys are still in and out of sort of guests of their own band while Jeff Downs and this new guy, John Payne became the Asia with other sort of rotating musicians. Everything came to a head in 2006, which was the 25th anniversary of the original Asia where John Wetton was now in recovery. And there was this and Steve Howe was, Yes, it was dormant for several by that point for a time. And Carl Palmer had nothing to going on because of ELP had broken up and so they figured, why don’t we get together and form Asia again? And John Payne said, well what have I been doing for 15 years?
I’ve been in Asia for 15 years and so much like similar to the Beach Boys you mentioned, you know the original Asia said, “Well you know if there’s anyone who has attachment to this name, it’s the one that actually sold the albums and went on tour that for people to see.” which was the original Asia because as much as John Payne did work hard, I don’t think anyone cares about John Payne with Asia that much. They didn’t sell 10 million albums like the original Asia. So the original album. So what happened is the original Asia, the deal was the original Asia got back together, they toured, they made a couple of, they made three or four albums. This is a side note, the third that it made, one of them called 30 X X X on their 30th anniversary and somehow Googling Asia comma XXX made that a bad business decision.
But that’s an aside and, and just as a note, and so they became Original Asia. Their name is just Asia, but their website is Original Asia and their website lists as their discography, anything from the original lineup, like the first three albums in the 80s and everything in the 00s. And then ,sort of like the Beach Boys, there’s now Asia featuring John Payne, which is basically everything else done in that 15 year period between the original Asia eras. John Payne, like I said earlier, you had Jeff Downs as the prime mover and the original Asia with the other guys. And John Payne became the prime mover after the other guys left. So, you have two guys of two different eras saying, well, my era of this band is totally legitimate and therefore deserving of the name. And I think that’s sort of where the problems arise where, you know, like I said, other bands like Jethro Tull or King Crimson, you have guys are important. But they know they’re not the band. Robert Fripp is King Crimson or Ian Anderson’s Jethro Tull. There’s no competition for leadership of these bands. They have guys where they basically take over with the permission of other big guys I guess. And they create their own sound, which is legitimate in its own right. So, there you go. There’s a brief history of Yes and Asia and the copyright stuff.
Anthony Verna:
You ready to take a take a deep breath?
Jim Cushing:
Yeah, please.
Anthony Verna:
Okay. Not a problem, but let me talk about a couple of cases and then we’ll get to why the cases look the way they do because Hey, we’re two lawyers, we’re going to geek out talking about law. And that’s I think kind of the point. There was a case called Kassbaum versus Steppenwolf Productions . Kassbaum was a former member of Steppenwolf and believe it or not, the, the ninth circuit said that that Mr. Kassbaum, and I forget exactly what he played was allowed to say that he was formerly of Steppenwolf or an original member of Steppenwolf for an original founding member of Steppenwolf. You know, however you’d like to phrase it. And, of course, as long as that particular phrase was not as prominent as the current band’s name, so that basically you’re telling the truth, right.
This person is an original member of Steppenwolf or a founding member of Steppenwolf or formerly of Steppenwolf. All of that’s true. And this person is allowed to say that and this person isn’t barred from, you know, in trademark law from doing that and not barred under contract law from doing that either. And there’s like another case called HEC Enterprises versus Deep Purple. And I’m not much of a Deep Purple fan. I don’t really remember them, but apparently there was Deep Purple and at some point, New Deep Purple and…
Jim Cushing:
Well, can I just say, Anthony, I just looked up Steppenwolf on Wikipedia. And I think the entire music industry has been a member of Steppenwolf.
Anthony Verna:
Oh, probably.
Jim Cushing:
Like 40 guys probably. Absolutely. And so saying that original members, I mean that’s saying something because you know there’s like 40 other guys you compete with. So that’s something, I guess.
Anthony Verna:
That’s true. I’m not too sure that that necessarily went into the court’s consideration. But yeah, I mean, I mean somebody who’s not going to go around saying third-generation member for Steppenwolf no longer in the band.
Jim Cushing:
No. Right. I mean the band was founded in 67 right. So, there’s an entire Wikipedia page dedicated to just the former members of Steppenwolf.
Anthony Verna:
Yes. It’s like we’re talking about a Christopher guest movie now.
Jim Cushing:
Well, I think just when people give me a hard time about the personnel changes and Yes, at least I can count them on two hands, mostly.
Anthony Verna:
And, of course, to talk about The Beach Boys’ case, excuse me. And that was called a Brother Records versus Jardine because it was Al Jardine, original member of the Beach Boys who would use various names, Al Jardine of The Beach Boys and Family and Friends. Yes. That was actually used, The Beach Boys, Family and Friends. And sometimes, of course, The Beach Boys were playing and some people were just used. And as we know, there’ve been many generations of, of the beach boys at this point and Brian Wilson is sort of playing once in a blue moon, as well. So, who really are The Beach Boys? But in this particular instance, obviously, as you can imagine, The Beach Boys is a registered trademark. And here using such phrases like Beach Boys, Family and Friends and, and even Al Jardine of The Beach Boys and Family and Friends would confuse consumers. And actually, there’s plenty of testimony in that particular case that people were confused that… not just concert goers but promoters were confused as well. People…
Jim Cushing::
Well they didn’t know that there’s actually a Beast Boys lineup Wikipedia page too.
Anthony Verna:
Yes, of course there should be.
Jim Cushing:
Their numbers are much smaller though. They don’t include… Where did John Stamos would fit into all this?
Anthony Verna:
I don’t remember where John Stamos fit into that to be honest. I think it was way after this particular case because I think that case, cause I forget exactly when Al Jardine left. But that case came before the John Stamos era of I think Kokomo. Probably. I could be wrong on that, but…
Jim Cushing:
According to Wiki, he joined in 84.
Anthony Verna:
Oh, there you go. So Al Jardine was going around calling himself The Beach Boys or using one of those mouthful of words. And, of course, Mike Love was going around calling himself The Beach Boys. So you have these two original founding members, both calling themselves the same name, but the fact of the matter still remained that Al Jardine was not a part of the group at the time and there was still a collective calling themselves The Beach Boys and he can’t break out calling himself The Beach Boys or any of those particular phrases. And especially the fact that that consumers were confused, but more than that, promoters were confused as well. So not just the music public and the music listening public, but also the music professional public that was out to book concerts and actually make money for these various entities was confused about who they were booking for.
So that worked very, very strongly against Al Jardine. And, of course, he was not allowed to just call himself The Beach Boys at that time. So a couple thoughts here and when we talked about planning this particular podcast, uh, Jim and I talked about how do we deal with names and on the federal IP side, what we’ll be talking trademark law in a second, but just as a mea culpa, I actually thought there were plenty of states that had laws about this. And you know what, I was totally wrong. I couldn’t find any states that discussed band names specifically. And a lot of these cases that we’re dealing with, that we’re talking about, really talked about either one, trademark law or two, contract law or some combination thereof. And so, one, a band name needs to be a trademark basically is the real thinking here, and I should say a band name is a trademark. It should be federally registered and there should be a formation agreement or really what is a business agreement and…a partnership agreement.
Jim Cushing:
What it seems to be, If I can say, Anthony, is for some of these bands… I mean I think I’m going to be, I’m stereotyping but I feel like if people get into bands when they’re young, you know in their late teens or early twenties and they just want to play music and then they’re not thinking about the implication of what would happen in 35 years of me being in this band and not really thinking about that and I feel as though sometimes the guy who’s the artistic inspiration of a band like Brian Wilson and The Beach Boys. I mean he’s the guy who makes The Beach Boys for me. Maybe just alone in that. I don’t know about you, but he’s the guy who makes the sounds for me, but he doesn’t seem to be in your discussion as to the name.
Which is unfortunate because without Brian Wilson, there would be no Beach Boys for the people to fight about.
Anthony Verna:
That’s true. But, but in the 80s, there was no Brian Wilson as well. He was dealing with his, his drug issues. He was trying to get Dr Landy out of the door.
Jim Cushing:
But it seems like ultimately the people who fight about the name are the people who either are lucky enough to be in the place where they’re the ones left, like Robert Fripp and Crimson or something. Or they’re the ones who think about with foresight. Maybe I should get an agreement so I can use this name.
Anthony Verna:
But yes. Yes, that’s exactly, that’s exactly what happens. And I can’t really say that there’s much wrong with, with what happens there. I mean, if a founding member goes to the family farm and decides to be a farmer instead of a musician, that person is no longer in the band. Even if that was an original, if other people have to come in to fill that person’s slot.
Jim Cushing:
Is there any analysis in like the, the amount of, of writing someone does or the influence they have on an image? So let’s say… I’m trying to think of something like John Lennon, someone tried to use the Beatles name or Bono and someone tried to use U2’s name something. Those are like people who are either intrinsically important to the band as a writer or as an image person. So, does that have any weight as to the claim to the name?
Anthony Verna:
No, it tends to be whoever is… it’s really not about that particular issue. It’s more or less about who is continuing that band’s name. So if a founding member were to drop out and go do some solo stuff, and that happens to be the face of the band, but like the three other people are still around and they want to record and they want to grow, go grab a new lead singer, they’re able to do that. And you know, think about Van Halen, which, you know, has had three lead singer incarnations and they’re still Van Halen. Even though nobody’s really gonna think about Van Halen three all that much, and they’re still Van Halen. So, it’s whoever’s continuing, even if it’s that key image person who’s probably done more songwriting than everybody else, so…
Jim Cushing:`
Well, let’s say in that example you gave, the bands of the first album or the first tour or whatever, they’d become a name. People know who they are and there’s original four or five or six members, whatever it is that one guy leaves. And can he, does he that point have a right to say, well this is no longer the band that I was in. You can’t use the name.
Anthony Verna:
I would say, without an agreement the answer to that is probably no.
Jim Cushing:
So, for example, 1969 or 70 when Yes was Jon Anderson, Chris Squire, Tony Kaye, Peter Banks and a Bill Bruford. Peter Banks was fired or left or whatever or whatever story version you want to use. That left four of the five still in the band. They continued to make music with Steve Howe. Is it the locust, how do you determine who owns the name? Is it by majority, or where the locust of the music is or what?
Anthony Verna:
Just noting the fact that there is a radical difference in trademark law from 69 and today. I will say that, in today’s world, what you’re looking at is probably majority and if a band has five people and three are continuing to use that name, then that’s probably going to be who wins out just because they’ve got five, the other people have two. It’s going to be without a contract, it’s going to be very, very sticky for those particular reasons. I think what the cases tell us is certainly when one person is out of a band and still uses the band name and, and yet the, the quote unquote original entity is still around that’s, an obvious loss for the musician who’s now on his own and forming a band. I mean, obviously you can go still play the music. That’s a totally different area. But you know, in talking about the band name itself, when you’ve got a cluster of people who of course have that history and might still be signed under the record deal. And that’s kind of, you’re looking at these things as to what’s the continuation and if it’s some kind of some kind of odd numbers split, probably the majority is going to get it.
Jim Cushing:
So even though an odd number split it, it would still be…Again, sort of going back to the question I asked you earlier, is influencing the band still a factor? So, taking it back to Yes. For example, let’s say Jon and Chris Squire, left, Yes in 1969. The two guys wrote all the music at that point in time, but the other three guys were majority, but they didn’t write really anything. What do you think the court would do that would be, the majority of the guys who didn’t write anything have majority, but the guys who wrote the whole music, all the music and are the image are the two? Wow.
Anthony Verna:
I think the court might go with whatever the record label would go with to be honest with you there. So if the record labels recognizing the other guys as the band, then I think a court might follow in that particular direction because if two guys leave the band and even if they’re the face and an image and songwriting, so they’ve put in the work. If they’re the ones who say, we’re no longer a part of the band, all right, well then everybody else must be a part of the band. And so, I think a court might, might go in that particular direction.
Jim Cushing:
Is there a distinction between that, and I’m sorry to put you on the spot cross-examining… Is there a distinction between someone leaving the band and like with, Yes, in 1980, where people thought the band was dissolved and then someone picked up the torch again and said, “No, no, we’re going to bring it back.”
Anthony Verna:
Well, in looking at this from a typical trademark law standpoint, cause I think that’s what we’d have to do in absence of a contract and in this particular case, let’s just make that assumption. Trademarks are abandoned after three years. And I know this is going to sound just really weird to a lot of people. But if on one hand I think we can separate a typical business and a band and if a business no longer uses a trademark, another business or person can come around and pick up that trademark after three years and just use it for the same goods and services because the other original business is no longer using it. It’s been abandoned. For bands all of that applies as well. I would say here, the difference is that if somebody were to have come around in the late two thousands and call themselves Toad the Wet Sprocket, you’d sit there and say, well no, you’re not Glen Phillips and the guys aren’t here and, yeah, the website’s kinda dead, but, but you’re not Toad the Wet Sprocket. And I think a lot of music fans would be wired to do that. And even if under trademark law, that would have been fully acceptable.
Jim Cushing:
Now does the record company who still makes their… I’m sure Atlantic Records or Virgin or whoever it is, I don’t know who’s still buying Toad the Wet Sprocket cds. I’m sure there is somebody…
Anthony Verna:
Me. I bought the last one.
Jim Cushing:
So, let’s say that a band goes 10 years without making something and they’re dormant for want of a better term, they’re gone. But the record company still makes their CDs for the two people who buy them a year. Does that keep it alive?
Anthony Verna:
I think so. And, that’s actually what I was going to say. I mean, you can look at the example of REM right now who is officially dormant and broken up. But when you go look at their website, it’s still up giving you updates about everybody. They released a couple of rarities collections. They released a MTV unplugged complete series. So, they’re still putting out stuff as REM. And I think you’ll see that probably be the way of the future so that the name can at least be encapsulated by the original members. And I have no doubt that while REM is no longer going to make new music, I certainly highly doubt that the four original members are not owners of the corporation, for lack of a better phrase.
Jim Cushing:
Well, because I have to tie this into prog rock though. Bill Rieflin, REM drummer, is now on King Crimson.
Anthony Verna:
Bill Berry…
Jim Cushing:
What’s that?
Anthony Verna:
Bill Berry, REM drummer.
Jim Cushing:
Yeah, there’s a guy called Bill Rieflin and apparently he was a member of REM as a drummer.
Anthony Verna:
I don’t remember a Rieflin. How do you spell it?
Jim Cushing:
You know what? The King Crimson website says he was, but it’s a R I E F L…
Anthony Verna:
Okay. So, he probably was. He probably came around.
Jim Cushing:
His website and Wiki says he worked regularly with.. Yeah, he’s a King Crimson’s third drummer. And now when I say third, I don’t mean in a row, I mean all at once.
Anthony Verna:
I think you’re going to be seeing more of this. And I think for a lot of bands, getting back to your original thought is Gee, when you’re 18, 19, all you want to do is pick up a guitar, pick a bass, pick up drums and get out your anger me and make some music and you’re not thinking of it as a business. And one of my earlier episodes where I spoke with Jay Thorne, who’s a horror writer, he said, that he’s an artist, but he also has to think of himself as an entrepreneur. And for a lot of bands, you need to think about yourself as a business. And that means having a partnership agreement, understanding what a band name is and how to properly protect it. And if you start when you start making money, how to properly protect it and understanding copyright law and making sure that your copyrights are registered, that your royalties are coming in with whatever is required in your business, you have to make sure that it’s done correctly. And a lot of people just don’t quite see that when they’re working in the arts.
Jim Cushing:
Right. I guess with bands ultimately, I mean, they might not have a contract with one another in the band, but I would suspect if you’re going to sign with any sort of record company, there has to be something, some pen has to be put the paper that says, you know, this is the entity that’s entering into this contract for it to sell records or whatever.
Anthony Verna:
I’ll tell you a classic example since we’re jumping around generations here is Crosby, Stills and Nash. And I’m trying to remember when they were going for another record and was it Stephen Stills who had… No, it was David Crosby, so wound up being the Stills and Nash album and the record company said, ”No, we wanted a day Crosby, Stills and Nash album and this doesn’t fulfill your contract.” And so, you have that happening at times throughout history, and that’s probably going to be an issue and, and, yes. So, the record companies do keep track of who is in also because there are performer of royalties, as well that, that’s another reason that record companies keep track and a performance royalty is a new kind of kind of right. And anything after 70, anything before 72, those people, those people are not gonna get performance royalty on top of any other sales royalties or copyright royalties, et cetera.
Jim Cushing:
So, when you say performance royalty, you don’t mean putting on a concert?
Anthony Verna:
If any recorded music, after 72, the people who perform get a royalty as well as the writers for any sales. So that if an artist is singing somebody else’s song and that song sells, whether on a compilation, in other words, a CD or it’s sold by itself as an MP3 or as a single or gets radio airplay, there are going to be rights passed out to the songwriter, but as well as to the musicians who have played on that track. So, there’s going to be a separate royalty there. So record companies need to keep track of who’s in a band and who’s playing on what song, anyway.
Jim Cushing:
And I imagine the record of the writing credits are important for that.
Anthony Verna:
Yes, absolutely. And in copyright law it’s required that when a royalty is paid, it’s paid to all copyright owners and in today’s world, the songwriters are going to be the copyright owners.
Jim Cushing:
Well, the performance royalty is for all, right? Or just the song writing royalty?
Anthony Verna:
Both. Both. Both.
Jim Cushing:
Yeah. So if Lennon-McCartney wrote a song, but all four of them played it. So that’s two different royalties depending on who participated.
Anthony Verna:
Yes, yes, of course. Like I said, any performance of all four Beatles is before 72. So, if you go buy the White album, Sir Paul is not getting any money from performance royalties.
Jim Cushing:
I thought he didn’t perform in the last two months.
Anthony Verna:
No, what I’m saying is that was before 72.
Jim Cushing:
All right. Okay. That’s when the laws change.
Anthony Verna:
Yes. Yes.
Jim Cushing:
Okay. Yes. Well, you know that again, I mean this is probably a, a podcast for another day, but you know, there’s a couple of people in Yes you say they’d never gotten the royalties for some of the things or maybe came very late or they’re still fighting for them or whatever from years gone by.
Anthony Verna:
I wouldn’t be surprised with that. I mean you will find in newspapers and music, heavy cities or in music publications, you’ll find a list of royalties of that are supposed to go to people that quote unquote cannot be found. And I will certainly tell you that Paul Shaffer’s name will be on that list and I don’t know about you, I think he’s pretty easy to find.
Jim Cushing:
So a couple, a couple of couple of funny stories if I could.
Anthony Verna:
Sure.
Jim Cushing:
One, I’m not going to mention I represented as a woman in a divorce and her husband, probably now ex-husband. I didn’t finish the divorce. He was a performer in a somewhat famous band that plays Christmas music.
Anthony Verna:
And I have a couple of guesses already in my head, but anyway.
Jim Cushing:
That’s right. So it was sort of like a Seinfeld episode because she was telling me about these royalties that she was due to receive as part of the marital state, which in theory is true, I guess. It depends on situation. And so, she gave me this list of like all these royalties and like she said, there’s thousands of dollars that she’s due and she needs to get her share of this, etc. And I was sure sharing in her justice of it all until this is why it’s a Seinfeld episode, if anyone watches Seinfeld, is that when, until I realized these worlds are Japanese, so they’re all in yen. So, the royalties are like $750, you know .But she didn’t realize that yen were like vastly like smaller than a dollar for you though.
Anthony Verna:
That’s all right. I just heard an interview with Rich Isen from the NFL network where he said that he just got home from a flight and opened his mail and there was a royalty check from doing two episodes of CSI Miami and it was something like $2.45 in residuals.
Jim Cushing:
So hopefully if he want his arm on cramp up right now, the checks like Jerry Seinfeld. No, but there was the first episode,
…episode is the wrong word, but the first featured case on Court TV was Patrick Mahrez, keyboard player for Yes, Refugee, but ultimately the Moody Blues, when he was asked to leave the band or kicked out, I’m not sure what the circumstances of his departure were. He was apparently, much to his chagrin, and I guess didn’t know he was not an official member of the band. So, when he was just a touring and playing easily, he toured and played on the studios and wrote music. But I guess he was not an official member and so he didn’t get the royalties he thought he deserved. And so, he took them to court, and it was on Court TV. Interestingly enough, I guess. My wife won’t go to see a progressive rock concert with me anymore. Uh, that was …
Anthony Verna:
She had her fill dating.
Jim Cushing:
Yeah. We, she did that when we were dating, I guess, because that’s what you do. And then And then, you know, she went to a bunch of, I’ll give her credit. She saw Yes with me. She saw Porcupine Tree. So, she was a good sport. She loved the Dixie Dregs. And just as an aside, the last thing she ever saw was this group called the Musical Box, which is a group that’s officially licensed by Genesis and Peter Gabriel will put on shows note for note and literally note for note, just like Genesis would.
Anthony Verna:
How do they sound like? How did the vocal sound as compared to Peter Gabriel?
Jim Cushing:
Their claim to fame is that if you line up pictures of their show next to a Genesis show, it’s exactly the same. They play all the notes exactly the same. All their body motions. They finally looked the footage, they try to duplicate a Genesis show as best as you humanly can. It’s amazing.
Anthony Verna:
Wow. I had no idea.
Jim Cushing:
And I remember going to this Musical Box show with my wife, Tiffany, and they were replicating one of the shows from the Selling in by the Pound and you know, Peter Gabriel, the guy playing Peter Gabriel was wearing the bat wings and the goofy face paint with the real incandescent eyes and they’re glow in the dark and all the weird backgrounds and the costuming. And she looks at me and she goes, this is it. This is it. This is the last one.
Anthony Verna:
But, I find that interesting that there’s a band that’s basically licensed in order to sound and look exactly like another band.
Jim Cushing:
Yeah. Because that that era of Genesis is so unique with the performance and the staging and the costuming and the music that I guess people didn’t want it to die out because Genesis became totally revolutionized in the 80s. And Peter Gabriel occasionally will recognize this fact. He did this, usually doesn’t talk about it, but sometimes he does. And he gave him literally the stage props to do it. And a lot of the vintage stuff and the rest of Genesis will sometimes even sit in with the band. And it’s pretty neat. And one of the tours or shows she saw with me before the end was we saw Rick Wakeman at the Electric Factory in Philadelphia. I’m from Philadelphia, practice in 2005, I think. And it was Rick Wakeman solo show. And this is relevant to the royalties.
And if you don’t know, he was a very popular and prominent session musician. So, he’s played on countless albums that most people have heard, but they don’t know it’s Rick Wakeman of Yes. And first two David Bowie albums, Black Sabbath, Lou Reed, lots of stuff. And so this one was in particular the Cat Stevens “Morning is Broken”, which I think most people have heard, right. Anglican Christian, him and Cat Stevens wanted to play it and he hired Rick Wakeman as a session guy to play the piano. And as, as most Christian hymns are, that’s like a minute and a half long. Right. So although singles are short, they’re not that short and Cat. Stevens said, “Well, Rick, play it with an introduction, you put an introduction.” So he played it with an introduction. “Okay. “Why don’t you do the same thing at the end?” “Okay. We’ll play it.” Same thing in and Rick Wakeman is telling the story in the middle of the songs and when I saw him, okay, you do a little middle thing. Okay. And that, that gets the song yet like three minutes and he added another bit. That’s great. And they recorded it and it became a big hit and later on Rick Wakeman was supposed to get his check for his royalties. He never got it. Cat Stevens called Rick Wakeman and said, “Hey, could you give me the music for what you played? Cause we’re going to go on tour and it’s a big song. We want to make sure you play it.” And Rick said, “Well sure, yeah I’ll give you the music. Just, you know, give me my check, the check never came.” And so when we saw Rick Wakeman perform, he pushed the piano away so you couldn’t see his fingers because to this day he’s never been paid for those royalties because then to this day, Cat Stevens has no idea really what he played exactly. And it had never been actually replicated as, as on the album because Rick Wakeman refused to disclose that until he gets his, at this point it’s probably like five dollars.
Anthony Verna:
But you know, I’m kind of surprised at that because it’s not hard for a lot of musicians to just figure out what somebody else is playing it.
Jim Cushing:
So I’m sure they figured it out, but he’s justt says on principle.
Anthony Verna:
Sure. It reminds me very much of a case I had when I first broke away from my old firm and… Jim Cushing: And there was no dispute over the name when that happened.
Anthony Verna:
Exactly. But when I took over a case and it had to do with a documentary that was made and I represented a camera man, which seems a little bit odd to a lot of people because a camera man’s work doesn’t necessarily belong to him. It belongs to the production company or the company that’s hired him to actually just point the camera. But there was no agreement. So that’s issue number one. And issue number two was more so that the interviewer who came to do the interview for this documentary came with about three questions, which is nice for maybe a half-hours worth of shooting. But if you’re actually putting together a documentary, you need to have four or five-hour sessions with people that you’re speaking to. And really these clips in a documentary of somebody speaking for 30 seconds is culled out of four or five, six-hours-worth of footage.
And in this particular case, our argument was that my client put in a lot of authorship and that what was done was very much a work of authorship by needing to pad 30 minutes worth of conversation into three or four hours. And that he was able to do it on his feet. He was able to keep the subject talking and he was able to get them enough footage that they were then able to put into the documentary and make a better documentary out of. So, it’s very much a similar argument. Like, here’s somebody who’s made, you know, I mean, it’s a little easier when somebody is a musician, has written music, but it’s the same issue. It’s like, Oh yeah. All right, you’ve recorded it. But now I want the check for my authorship. And that’s effectively what that is under copyright law.
Jim Cushing:
Yeah. Because he participated creatively in the creation of this documentary as much as the other players in the thing.
Anthony Verna:
Absolutely. No, absolutely. Absolutely.
Jim Cushing:
Right. So, I guess the moral of our story today is get everything in writing. It doesn’t matter which part of the role you play. Make sure you have a partnership contract.
Anthony Verna
Boy, it sounds like such a lawyer, doesn’t it?
Jim Cushing:
Okay.
Anthony Verna:
I know. And it’s not like we’re here to suck the fun out of music. It’s something that I’ve certainly done. I’ve done partnership agreements, I’ve done trademark searches for musicians and it’s something that a lot of bands don’t quite think of. But ultimately down the road when you plan your business, which is effectively what a band is, it’s a business and you plan for down the road, when you get to trouble points, it’s easier to deal with them.
Jim Cushing:
Well, think of it this way, if you’re the 18 or 19 year old guy entering in the band and you’re writing a partnership contract, you’re basically saying that you’re going to be around in 20 years to make that important, which is a good thing for your career I guess. I do have a question for you. I mean, before we sign off, I do have a question. My father-in-law, Matt Stauffer, he’s in a band, he’s a musician. He was never able to get the big record deal that he wanted, but he still tours locally in pubs and bars and has bands and so on. And he’s in a band right now called Geezer. He’s a funny guy.
It’s a bunch of guys in their fifties and sixties playing music of their era. And so obviously, they made an album out of someone’s house on a PC, right? There’s not a record company and by album, I just mean a, a series of covers. I don’t think they have a whole lot of… they only have one or two original songs that I know of. And so, there’s no record companies, no record deal, there’s no contracts, there’s none of that. There’s a website. Can someone else use that name? It’s just a garage band, more or less of old guys.
Anthony Verna:
Going back to traditional trademark principals, because that’s effectively what we’re looking at here. The first question we have is, is there interstate commerce one, is there commerce to begin with? And two is there interstate commerce? So let’s, let’s break that out into, into two questions. And then the next question that we have is, is this the most senior user of the mark? Because it, especially in the goods and services. So, if there was another band out there called Geezer, using obviously same goods and services, whether it’s recording music or performing music, certainly they’re related. So you have to look at all of those questions and get those questions answered before you get to your yes or no. Of course, it’s not necessarily a flip some bits and you get definitive answer.
Jim Cushing::
Well, is there any answer the lawyer gives you? It depends, of course. Right. But so, I guess for a garage band like Geezer, they’re a Philadelphia area, you know, bar they play for in bars and stuff. So I mean, if some group came up in like Toledo, Ohio or you know, Boise, Idaho with the name Geezer, which I’m sure there’s other people using the name that would necessarily, I get to call it the conflict because there it’s not really a conflict. It doesn’t go out of the five county Philadelphia area.
Anthony Verna:
Sure.
And like I said, you’re going to probably with a lot of some businesses, you’ll see that that particular, um, conflict happen. And I’m actually dealing with this for a client right now. Like who do we have the right to send a cease and desist letter to? Is the cat even just out of the bag. And those are particular questions that you always have to have to answer. So, so here it’s going to be right, are there, you know, are there bands that are senior to this band? And even that isn’t necessarily definitive because if one band bands only been around a year, that’s going to be different than another band that might’ve have been around for three years. And it depends on how long this particular band is around as well. So all of those are, you know, when you start going down the checklist of things that you have to answer, the it depends typical lawyer thing that we joke about really does come into play.
Jim Cushing:
Thanks for answering.
Anthony Verna:
I do my best, sir. I will let you return to work. Jim, thank you so much for joining us.
Jim Cushing:
Thanks. Until next time.
Anthony Verna:
Of course, sir. I’ll talk to you soon.
Jim Cushing:
All right, thanks.
Anthony Verna:
You’re welcome. Bye.
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