By New Times
By Derek Askey
By Mark Deming
By Serene Dominic
By Jason Keil
By Robrt L. Pela and Amy Silverman
By Jeff Moses
By Serene Dominic
I've never been the litigating type. Every time I've needed to hire an attorney, it's been of the criminal defense sort. I'm not in a band, though, and it's not uncommon for bands and musicians to have to deal with cease-and-desist demands, copyright and trademark issues, and other legal bullshit. Hence, entertainment lawyers.
Band names, especially clever ones, are hard to come by at this stage in the span of musical history. Even the most unconventional names are often shared by other regional, unsigned bands. Take local hard-rockers Vayden there's another band from Vineland, New Jersey, that has the same name.
Most times this isn't an issue, unless one band starts getting some exposure and making some money then you encounter cease-and-desist orders. Ever wonder why Blink-182 had the "182" added? Because there was already another band named Blink.
Eric Seven of local electronic/synth/dance outfit Radio Free America was delivered an order to cease and desist using his band name in January of this year, and while most would have acquiesced, Seven fought the power and won some serious dollars. Hell, I probably would have caved (lawyers scare me), but after hearing Seven's story, I think bands and artists should seriously study trademark law before giving in to legalistic demands like that.
Before the situation with Radio Free America, Seven already had some experience with cease-and-desist orders. In 1995, he ran a satirical Web site called "Reznor's Edge Trent Reznor's Personal Homepage," where he pretended to be the Nine Inch Nails front man and posted scurrilous bullshit, inventing a new NIN album called Impossible Pain.
Unsurprisingly, Reznor's people were pissed. Kerrang! magazine picked up on it, buying into the Impossible Pain rumor, as did other media outlets, and Reznor's attorneys sent a letter to Seven demanding he cease imitating Reznor. Seven shot back a point-by-point rebuttal, asserting his First Amendment right within the bounds of satire, and he never heard from the attorneys again.
When Seven got the letter in January demanding he immediately stop using the name Radio Free America and surrender the domain name www.radiofreeamerica.net, he was inclined to fight. The plaintiff, Kenneth Pushkin from New Mexico, had trademarked the name in 1982, and Seven's band had only been playing since 1991. Nonetheless, trademark law is a screwy little corner of the legal world, where usage is as important as registering with the United States Patent and Trademark Office.
Luckily for Seven, he has a friend, Kenneth Spafford, who practices trademark law. Spafford fired back at Pushkin's attorneys, asking for more information about Pushkin's Radio Free America trademark. The response was that Pushkin had successfully defended the trademark against Warner/NBC for the TV show V, MGM/UA for the movie Red Dawn, Abbie Hoffman for use in a radio show, and MCA/Universal for the movie Pump Up the Volume.
Pushkin's attorneys also claimed that Pushkin had big plans for the Radio Free America name, working toward a movie production and soundtrack, as well as merchandising and licensing. "Your client's use of the name in the fields of music, radio and/or entertainment, and in particular with records, will obviously cause great confusion in the marketplace and will impinge on our client's rights in his mark," the letter asserts.
What most artists would fail to realize at this point is that plans to use a trademark don't equate with actual usage, and Seven had released 12 separate recordings using the name.
Seven's attorney requested financial figures for income generated by Pushkin using the Radio Free America name. Obviously lacking any proof that Pushkin had used it extensively as a business venture, Pushkin's attorneys then offered Seven $5,000 for the name and the Web domain. Sounds good, right? Seven didn't think so.
"The offer is woefully inadequate as consideration for complete abandonment of Mr. Seven's trademark rights," Seven's lawyer replied. "You will need to advise your client that Mr. Seven is not prepared to abandon his trademark rights without receiving consideration equivalent to his investment in the mark, his costs of converting to another mark and his legal expenses as well. Together, I expect that cumulative costs would exceed $110,000 at this time."
At this point, Seven and his attorney Spafford countersued in New Mexico. As Seven told me, "It only costs you about $250 to have an attorney write a letter. Actually going through with a lawsuit shoots you into hundreds of thousands of dollars in expenses."
That was money that Pushkin wasn't prepared to spend defending himself, and he ended up settling the litigation last month for $30,000, which gave him the rights to the name and the Web domain. Seven paid off a bunch of bills, played his last show as Radio Free America a few weeks ago at Hollywood Alley in Mesa, and is rechristening his group Smile You're Dead, whose debut comes out in February.
So, use your name until you lose it, or until you're positive that someone's using it more than you are. Trademark law is a tricky little bastard, and if, say, the New Jersey Vayden tries to squash the local band's use of the name, I'd advise the group to dig in and see who's actually been around longer.
Shit, at this point, I wish someone would try to trademark my name. I've got 30-plus years of usage on it, and I could use 30 grand.