Tag Archive for music

Midnight Syndicate sues Insane Clown Posse for Copyright Infringement: Entity Production, Inc. v. Psychopathic Records, Inc.

April 16, 2012 articles Comments Off on Midnight Syndicate sues Insane Clown Posse for Copyright Infringement: Entity Production, Inc. v. Psychopathic Records, Inc.

Some Cleveland-based musicians specializing in the horror genre have unleashed a monster-sized lawsuit against some evildoers. On Halloween 2011, the recording artists Midnight Syndicate and their company Entity Production, through their attorney Marc Avsec (a musician himself) filed a $2.1 million copyright infringement suit against Michigan bad boy rappers Insane Clown Posse and their company, Psychopathic Records. Judge Solomon Oliver of the U.S. District Court for the Northern District of Ohio in Cleveland will preside over the case, which is expected to begin after the first of the year. That is, if the case even gets to trial, in view of the sublime complaint crafted by Avsec. The filing, in twenty pages, sets out every jurisdictional requirement and answers every possible question in a copyright infringement case – what was taken, who did it, who owns it, and what it is worth. Copyright registration certificate numbers are listed for all the seven appropriated compositions and sound recordings made from them. Information is given in several counts about the popularity of Midnight Syndicate’s Halloween/horror themed songs, their distribution and sales worldwide of 500,000 copies, and their use in theme parks, television shows, films and video games. Against this in other counts is the research showing the Insane Clown Posse (ICP) catalogue has sold 6.5 million units worldwide and reaps $10 million per year in revenue from exploitation of their songs and related merchandise.

Although the Midnight Syndicate music samples were used in bands other than ICP itself, (like “Twiztid”, and “Dark Lotus”) the bands are part of ICP’s companies and are controlled by Psychopathic Records and the principals of that company and Insane Clown Posse LLC, Joseph Utsler aka Shaggy 2 Dope, and Joseph Bruce, aka Violent J. The complaint leaves no stone unturned, listing the trademark registration for “Insane Clown  Posse®” in several different classes for sound recordings, record production services and entertainment services including musical performances. The other bands on ICP’s label are also marketed under ICP’s trademark. In meticulous but straightforward detail, the complaint alleges the harm caused to the plaintiff Entity Production, the control, supervision and ultimate responsibility of the principals for the infringement, and how they profited from the exploitation of the Midnight Syndicate samples. Direct and vicarious liability is alleged with the statement that “Bruce and Utsler personally sampled or directed the sampling of Midnight Syndicate Recordings.” A copy of the cease and desist letter that Entity Production sent to Psychopathic Records in October of 2009 is attached to the complaint, detailing the specific infringements of Midnight Syndicate recordings by the ICP groups. The letter was ignored by the “wicked clowns”, leading to this lawsuit. Illustrating the defendants’ utter defiance of the claims of infringement, ICP again sampled a Midnight Syndicate recording in the summer of 2011, leading to the lawsuit’s claim that the infringement was malicious and intentional.

The allegations are that ICP sampled substantial portions of Midnight Syndicate recordings and used them in their original form with vocal overdubbing and multiple looping, essentially making them into the musical bed for seven of ICP’s and the other related band’s songs. One writer who listened and compared the original to the infringing songs stated that it sounded like the sample was lifted straight from the Midnight Syndicate song. The complaint claims in count 59 that ““Mirror” is basically Midnight Syndicate’s “Haunted Nursery” recording and musical composition with Twiztid’s vocals overdubbed.” Under section 114 of the Copyright Act, which grants an exclusive right to the copyright owner to reproduce and make derivative versions of the copyrighted work, infringement is found when there is physical copying of a recording by digital sampling. By the precedent set in a 2005 case from the 6th Circuit Court of Appeals, Bridgeport Music v. Dimension Films, no tests of substantial similarity or de minimis inquiry is required when there is unauthorized sampling, no matter how small the sample. Bridgeport set a new rule that the copyright owner is the only one who may sample his own copyrighted works; the court in that case admonishes prospective samplers to get a license from the owner or don’t sample, also noting that licensing of samples is now standard practice in the recording industry. There are a number of clearinghouses for licensing music samples as a result of actual and threatened litigation in the area of digital sampling infringement, which are authorized by member copyright owners to clear samples for use on albums according to an agreed upon fee structure. However the court in Bridgeport also stated that there will still be artists and companies that choose to sample and take their chances, and six years after that case, Insane Clown Posse have been haled into court for doing just that.

Entity Production’s case may not make it to trial, either because of a settlement, in view of the overwhelming evidence of intentional infringement, or because it can be decided simply on the information contained in the complaint, on summary judgment. I don’t believe there is any believable defense that ICP can put forth to Midnight Syndicate’s claims of copyright infringement, and we will soon find out if they want to take their chances in a trial, which would be more costly than a settlement. Either way it would be a nice victory for the underdogs, two niche recording artists from the Cleveland area, against two million dollar mainstream performers and merchandise salesmen from Michigan.

 

© 2012 Mary Ellen Tomazic

Cleveland’s Underground Music Scene, 1967-1979

April 1, 2012 articles Comments Off on Cleveland’s Underground Music Scene, 1967-1979

 

(originally published in Negative Print Fanzine, September 1983)

Part One.

As far as most of us are concerned, the musical apocalypse happened in 1977 with the Sex Pistols in England, opening the door for new forms of rock’n’roll. Yeah, we all know the Dead Boys released their first LP that year, but the members didn’t suddenly appear overnight. Clevo does have a past – most of the participants in this early subculture are still around.  Jim Jones and Brian Sands who both work at Record Rendezvous at 3d and Prospect were part of it; so was Tony Maimone, who now has a band called Tight Dreams; Nick Stephanoff is now Nick Knox of the Cramps; and the legendary Peter Laughner tragically ended up dead of natural causes in 1977. I can’t begin to chronicle those days in very much detail – I was a minor myself back in those days. I can, however, try to give the reader a feel for the Clevo underground of 1967 – 1979, a glimpse into the musical roots of our industrial city.

People who complain about the situation now don’t realize that in 1971, having a regular place to play and hear original music (besides garages) was beyond the wildest dreams of those involved. The closest thing to a underground bar was La Cave on Euclid Avenue near E. 103d near CWRU, where the Velvet Underground held court as the house band from ’67 to ’69. This is where Peter Laughner and other Clevo bands of the time got their strong Velvets influence.

Peter was one of the driving forces of the Clevo scene in the early ‘70s, being both journalist and musician. Laughner’s first band, Mr. Charlie, was born when he was in high school; he went on the join the Mr. Stress Blues Band as one of their more interesting guitarists. He once met Lester Bangs, rock writer extraordinaire from Creem Magazine, which led to the publication of several Laughner articles in that beloved rag. Laughner’s next band, Cinderella Backstreet, was formed in late 1972 and included Albert Dennis, Rick Kallister, and Scott Krause (later drummer for Pere Ubu and Home and Garden.) CB played the Viking Saloon on Wednesday nights in the early 70s; the Viking was a CSU bar at 2005 Chester which burned down in late 1975. Laughner was heavily into the Velvets and Stooges at this time and had actually put an ad in the Plain Dealer asking for some “real punks”. The two guys who answered, Johnny Madanski and Gene O’Conner will be featured in Part Two of this article.

Around the same time Laughner was playing in Mr. Charlie, his good friends Craig Bell, Jamie Klimek, Jim Crook, Mike Weldon and Paul Marotta formed the “quintessential basement band”, Mirrors, while attending Lakewood High. Mirrors was heavily Velvets-oriented too, Craig and Jamie having spend many nights sneaking into La Cave with Peter. The band sang of “lust and degradation”, but seldom left their basement except to play several Lakewood YMCA teen dances. When Craig Bell was drafted, Jim Jones replaced him on bass. The band stayed together long enough to finally release a single in 1977, “She Smiled Wild” b/w “Jailbait” and ”Shirley” (recorded in 1975) on Hearthan Records (Pere Ubu’s label.) A few of the Mirrors then formed the Styrene Money Band, which still did the Mirrors’ “Cheap and Vulgar” and released a fairly well-known single, “Drano in Your Veins” around 1978 or so.

Probably the most infamous of the early Clevo underground bands was the Electric Eels, featuring Dave McManus on lead vocals, clarinet and lawnmower; John Morton as guitarist and tinfoil head; Paul Marotta, Brian McMahon and itinerate drummer Denny Foland, Nick Stephanoff and Tony Fier made up the rest of the band. Nick went on to fame and fortune in the Cramps, replacing another Ohio resident, Miriam Linna, who formed the Zantees. Tony Fier started the Styrene Money band with Paul, and John Morton had a non-band of the visual arts, Johnny and the Dicks. Some of the Eels originals were “Safety Week”, “You’re Full of Shit”, and “Flapping Jets”. They did several non-originals too – The Patty Duke theme, Lawson’s Big-O commercial, the Flintstones theme and Dead Man’s Curve.

The Eels hardly ever played out either, but posthumously released a single in 1979 which has had some influence in today’s scene – “Cyclotron” b/w “Agitated” (I’m positive this is where the Plague got their best tune!) The Eels biggest gig was also the most legendary of the Clevo underground scene of the time – “Special Extermination Music Night” with the Eels, Mirrors, and Rocket from the Tombs (more about them in Part Two.) The poster proclaimed “Attendance Required” and the venue – the Viking Saloon on December 22, 1975, with – are you ready for this? – Kid Leo as the HOST! This gig went over so well that the Viking couldn’t top it, and spontaneously burned to the ground the very next day.

Part Two.

In the opening years of the seventies, David Thomas, a teenage heavy metal freak, badgered Scene editor Jim Girard until he let him write a column. This column transformed David into “Crocus Behemoth” in 1971, by 1972 it was “The Phlorescent Crocus and Ricky”, then in 1973 “Croc ‘O’ Bush” (with Mark Kmetzko.) Local band and scene news showed through the Crocus column for years, and it made David something of a Clevo celebrity, but nothing compared to his notoriety in his later bands.

It must be remembered that WMMS was not the enemy back in 73 or 74; they were an underground radio station at that time, where no tune was ever played twice in one day (well, almost no tune.) The Scene and WMMS bunch were known as the “Cleveland Mafia” (more appropriately now, but then merely as a joke) and had a joke band called “The Great Bow-Wah Death Band”, with Davis Thomas as “Dr. Science”. It could be described as “free-form anarchy”, included a few genuine musicians, and played at the Viking Saloon, Agora and the glorious House of Bud (now a parking lot across from CSU.)

David really wanted a more musically proficient band to “bring Cleveland to its knees”; his favorite bands were the Stooges, MC5, Blue Oyster Cult, Lou Reed, and the Youngstown glitter/metal band Left End. On June 14, 1974, he made his debut with the now-legendary Rocket from the Tombs, originally also including Kim Zonneville (a/k/a Charlie Weiner), Tom Clements and Glenn Hach, at the Viking Saloon. David described the band at first as a “punk rock lampoon” and a “New York Dolls takeoff” – they even did a version of Zappa’s “Flower Punk” called “Hey Punk” as well as other assorted zaniness. In October 1974, Peter Cangliner joint Rocket from the Tombs, and Charlie Weiner left when David and Peter wanted a more “serious” band to do Stooges-type material.

In early 1975, Gene O’Connor and Johnny Madansky, the two “real punks” who had answered Peter’s 1971 P.D. ad joined Rocket from the Tombs. They had previously been in a band called Slash, doing N.Y. Dolls, Kiss, and Mott the Hoople covers. These two were also Stooges fans, and R from the T now did “Raw Power”, “Search & Destroy”, and “Rich Bitch”, which didn’t come out until 1976 on Metallic KO, but was performed by the Ig in Clevo (opening for Slade) at the Allen Theater in February 1974. Original Rocket from the Tombs tunes included “30 Seconds Over Tokyo”, “I Heard Her Call My Name”, “Life Stinks”, “Sonic Reducer”, and “Down In Flames” (last two made famous by the Dead Boys.) The final addition to Rocket from the Tombs (in May 1975) was Stiv Bators from Girard, Ohio who was an Ig fan and local scenemaker. In 1970, NBC filmed the Stooges in Cincinnati for their “Experiments in TV” show, and as Iggy was walking on the hands of the fans into the audience (first stage diver?) Stiv handed him a jar of peanut butter which he spread on his chest. This incident made Stiv famous nationwide, it being a network show.[1]

In early 1975, David and Peter badgered Kid Leo so much that he consented to having Rocket from the Tombs on his Sunday night interview show on ‘MMS. Rocket even got to play the Agora in May of 1975 after Stiv joined. Before this though, Peter arranged to have Television play Clevo at the Piccadilly Inn at E. 30th & Euclid (in the Penthouse.) He financed the gig out of his own pocket; it was TV’s first non-Manhattan gig, and Rocket from the Tombs was the opening act. At this time Kid Leo and others at ‘MMS were playing Television’s first independent single pretty heavily, a version of Roky Erikson’s “Fire Engine” from the Eno demos.

After the Television show, Peter Laughner left Rocket from the Tombs to play in the (Television inspired) band Friction. Friction had as a member Adele Bertei, who later was in Peter and the Wolves with Laughner, and then went to N.Y. to join James Chance and the Contortions. This left only David Thomas, Stiv Bators, Gene O’Connor, and Johnny Madansky in Rocket from the Tombs. With too few places to play (RFTT once played Bain Park Community Cabin in Fairview Park for a teen dance) and too diverse ideas, Rocket split into Frankenstein (including Stiv, Johnny and Gene) and Pere Ubu which David formed with some ex-Cinderella Backstreet members. Frankenstein was more of a true punk band. On New Year’s Eve 1975 they played the Piccadilly Penthouse and engaged in a little pool cue-swinging, making then notorious toughs immediately. In late 76 and early 77 they played the Crypt in Akron, run by the guys in the Rubber City Rebels. Pere Ubu, of course, went on to become the most famous and well respected Clevo band so far, touring Europe many times and putting out numerous singles, albums and EPs between 1975 and 1981 when they broke up. David planned Ubu to be more of a psychedelic, Seeds-influenced band, but it went far beyond his wildest dreams to become one of the most intense and unique bands ever heard. Even back in 75-76 WMMS was cool enough to play Ubu’s legendary tunes, “30 Seconds Over Tokyo” and “Final Solution” before they went totally corporate. Pere Ubu was also the first non-Manhattan band to play Max’s Kansas City in New York, and in fact was included on their compilation album in 1976.

Frankenstein was a band with a shaky foundation, and split up soon after forming. They must have had some conflict, because Gene O’Connor (now Cheetah Chrome) and Stiv Bators answered an ad in the musicians section of Scene advertising for members to complete a hardcore band. This was in early June of 1976. My brother and his guitarist put the ad in to find a singer and bass player, and talked to Cheetah for close to an hour on the phone about the band Cheetah was forming. Unfortunately my brother’s guitarist had a broken finger and couldn’t play for a month, so even though addresses and phone numbers were exchanged, Cheetah and Stiv couldn’t wait. They packed up and went to N.Y., taking their old drummer Johnny Madansky (now Johnny Blitz), adding Jimmy Zero on 2d guitar, and leaving the bass section flexible (like Roxy Music did.) About a month after the phone call from Cheetah, a picture and note in the Scene announced the new Clevo band in New York – “The Dead Boys”. The Dead Boys played their first near-Clevo gig at Chippewa Lake Park at a concert put on by WKDD-FM, Akron (now soft rock.) Other bands there were the Rubber City Rebels, Blue Ash (from Youngstown), and Mahogany Rush who gave out the lyrics to their “World Anthem” so people could sing along. The next Clevo gig was a bit closer, in Lakewood at the Phantasy – Channel 8 News even showed up and made the Dead Boys go on early to get a few live shots for the 11:00 news.

Rocket from the Tombs tunes showed up on the first two Dead Boys albums – “Sonic Reducer” and “Down In Flames” on the first one, and Peter Laughner’s “Ain’t It Fun” on the second, with a recording of Peter’s voice at the end saying “I’m dead”. Stiv Bators claims that the Dead Boys are haunted by Peter.

Part Three.

The Summer of Love, 1967, saw a band called the Munx get started around town. The band included Bob Bensick (who returned around 1982 with his wife in an MTV-style band called Berlin, now Zara), Denny & Billy Earnest (who just may have later become Deadly Earnest and the Honky Tonk Heroes, – not being a Country/Western music fan, I can’t say for sure.) In 1969, Bensick formed Sheffield Rush (many bands had “Rush” in their names back then, before the Canadian Rush. Who out there remembers Joel Lariccia’s “Roseflown Rush”? I guess everyone was “rushing out” in those days!) That last year of the 60s brought us probably the most legendary original band to come out that early in Clevo. Moses included not only two ex-Choir members, Randy Klawon on lead guitar and Dennis Carlton on bass, but also David Alexy on drums and our own Brian Sands (a/k/a Brian Kinchy) on vocals and guitar. Moses played the legendary Midwest teen club circuit located in shopping centers and obscure suburbs (remember Cyrus Erie West, formerly a Hullaballo, in North Ridgeville?) throughout Ohio, Michigan and Pennsylvania. They opened for the Stooges several times, at the Chagrin Armory and Mentor Hullaballoo, and also for Alice Cooper twice (once at the N. Ridgeville Hullaballoo in 1971.) They did an original song called “Shock Treatment” six years before the Ramones hit the big time, as well as many other tunes they had written – this was the heyday of cover bands, remember. They also gave out illustrated programs and sometimes even wore masks – again, years before other Clevo “theatrical” bands such as Fayrewether and Molkie Cole tried these techniques.

The early 70s brought out the same bunch with new bands – Bob Bensick form and electronic band with Allen Ravenstine called “Hy Maya” that used to give “performances” from time to time, mainly on the East Side. David Alexy and Dennis Carlton from Moses formed a band called “Milk” in 1973, which also included Al Globekar, later to be in Circus. They were also theatrical (wasn’t everyone back in the glitter days?), played Cyrus Erie, and once opened for Canned Heat. Ex-Moses Brian Sands played around with several projects, Brian Bulldog (toy drum kit, pre-recorded tapes) and Brian and the Juniors (with two 15 year olds, circa 1978.) Brian also did the fab 60s commercials at Disastrodome II at the WHK Auditorium in 1978 – Farrah Fawcett for Dubonnet, and the infamous Doral “Taste Me, Taste Me” spot. One can converse with the legendary Mr. Sands at Record Rendezvous at 3d and Prospect downtown, or read about him in the “S” issue of “CP” Magazine.

The “Summer of Hate”, 1977, didn’t pass Clevo by as far as punk bands go – a slew of ideas were flying around town at that time. Probably the major punk entrepreneur of this period was Johnny Dromette, who owned the Drome record store. He used to have bands play in the window of the store up on Cedar Hill near Coventry – Devo was one of them, the Pagans were another (see the cover of their single “What’s This Shit Called Love?” for a memorialization of the event.) Dromette also managed the Pagans, who did their first gig July 6th, 1977 at the Looking Glass in Euclid. Even then they did a fair amount of covers, including “(I’m Not Your) Stepping Stone” and even (ugh) Rolling Stones songs; Mike Hudson, Tom Metoff, Tim Alee and Brian Morgan were in the band then, and their first single (still considered by some to be their best offering) was “Six and Change” recorded live in October 1977.

Cle Magazine was the premier publication at the time though only four issues came out (all collector’s items now.) Contributors and staff included David Thomas, Johnny Dromette, Mike Weldon, Charlotte Pressler, Mike Hudson, Andre Klimek, Mark Mothersbaugh (as artist) and John Morton, (a/k/a Johnny and the Dicks visual art band.) Cle number 3A had a 2 page rundown of all Clevo alternative bands, and it is a revealing bunch of history to say the least! Some of the bands mentioned were: The Baloney Heads, featuring ex-Bluestone Drummer Wally Gunn and ex-Strutter drummer Jeff Cougenour; Live Jack, a nine year old from South Euclid who sent Cle tapes with a heavy Stooges influence, featuring songs such as “School’s So Dumb”, “People Growing Beards” and “Microscopic Jets”; and a young 3-piece called Public Enemy with a tune called “New High School” and the fastest ever version attempted of “I Wanna Be Your Dog”. Also featured were the Dromones, which Johnny Dromette formed to be “a crass, one-gimmick exploitation of modern trends”; they did 30-second tunes like “Coed Jail”, “Drome Theme”, “5 Seconds over Borneo” and an extremely condensed “Master of the Universe” by Hawkwind. They opened for the Pagans and others, and were all Drome employees – Mike Weldon (ex-Mirrors), Jim Ellis, and Pasadena Dromona as chanteuse. Ex Blank X was another clever band with ex-Eels members doing ex-Eels tunes, including “the hit” “Agitated” (later done by the Plague.) Last but not least, Cle 3A mentioned a band called the “Dead Kennedys”, renamed the Kneecappers (remember this was in Spring 1978) featuring “Russ and Pat from Elyria”, Mr. Chris Yarmock (later Easter Monkey vocalist/sax player with Jim Jones) on vocals and Gary Lupico from WRUW and the Scene mag. – very interesting, but puzzling!

The late 70s spawned one more magazine and a bunch of bands semi-connected with it – Larry Lewis (now known for his band Faith Academy) put out a magazine called Mongoloid at a very tender age, and also had a band called Medusa Cranks. A band prominently featured in Mongoloid was the Lepers, who made their debut in June 1978 with songs such as “Desegregation Blues”, “Welcome to Cleveland”, “Avant-God” and “I Hate Coventry”. In late ’78 they had a single on Drome Records, “Cops”, “Coitus Interruptus”, “Light Up a Pack” and “Flipout”. These mid-period punk bands were probably more involved with real politics than the HC bands now – they played benefits for causes other than their own projects. One event was “Meltdown ‘78” at CSU on November 12, 1978, a benefit for the Western Reserve Alliance and the North Shore Alert – two area “No Nukes” groups. Bernie and the Invisibles, Medusa Cranks, Public Enemy, Backdoor Men, the Lepers and the Pagans played.

And so ends the tale of the Clevo Underground – you all know what goes on now – a bigger scene doesn’t necessarily make for more harmony. Thanks to Cle, Mongoloid, and PTA Magazines for the research sources for these articles.

(Postscript – several of the musicians in this article have since passed away – RIP Stiv Bators, Gary Lupico, Jim Jones and Larry Lewis.)

 

© Mary Ellen Tomazic 1983

 

[1] Later scrutiny of the film by some Stooges buffs revealed that Stiv may not have been the one who handed Iggy the peanut butter jar, but he claimed that honor and legend till his untimely death.


When Can a Picture in the Public Domain Be Protected As Intellectual Property? The Velvet Underground vs. The Andy Warhol Foundation for The Visual Arts, Inc.

February 1, 2012 articles Comments Off on When Can a Picture in the Public Domain Be Protected As Intellectual Property? The Velvet Underground vs. The Andy Warhol Foundation for The Visual Arts, Inc.

The Andy Warhol Foundation for the Visual Arts owns many copyrights on the deceased artists’ works, and in keeping with Andy Warhol’s own statement that he would “endorse anything for money”, the Foundation has licensed many Warhol creations for commercial products. However, when the Foundation agreed to license the iconic banana image from the Velvet Underground’s 1967 first album, “The Velvet Underground and Nico” to Apple to use on iPhone and iPad cases, sleeves and bags, The Velvet Underground, which licenses the banana image as its trademark, protested. The Foundation, after receiving a cease and desist letter from the Velvet Underground’s lawyers, responded that the Foundation “may have” a copyright interest in the image that gave them a right to reproduce and license the image. The Foundation lawyer in 2009 even went as far as to claim that the Velvet Underground’s licensing activities infringed its copyright in the banana image, although there is no copyright registration by the Foundation for the image. The Foundation’s intellectual property counsel in 2011 boldly admitted in its correspondence with the Velvet Underground that “the banana design has been a consistent and prominent part of the [Warhol] Foundation’s licensing program for a number of years.” The Velvet Underground then sued the Foundation in New York federal court after it refused to stop licensing the banana image, claiming they should prevail because the banana is not copyrightable as being in the public domain, but is their trademark, and the Foundation is infringing their intellectual property.

The original image was taken from an advertisement and used by Warhol and the members of the band as part of their collaboration together at the time to create the album cover. The band split its $3000 advance from MGM for the rights to the recording with Warhol, in part as consideration for his furnishing the illustration for the album. No copyright symbol was included on the image when it was published on the album cover, and there was no deposit of it into the Copyright Office made by Warhol or anyone else. After its release, the album was withdrawn and rereleased with some changes to the back cover, which ironically contained a photograph furnished by Warhol that was infringing. Again no copyright symbol was affixed to the banana image, which, along with the deposit, was a prerequisite to copyright protection at that time under the 1909 Copyright Act. Therefore, the banana image immediately went into the public domain and was never able to be the subject of a copyright claim by Warhol or the Velvet Underground. The Velvet Underground’s first claim for relief urges the court to declare that the banana image is in the public domain and there are no copyright rights in the design. The VU then claims that it has used the iconic image in its licensed merchandising activity since at least 1993, it is immediately recognizable as a symbol of the VU, and that it has attained secondary and distinctive meaning under the trademark law to purchasers of goods bearing the design.

Even though the VU has not registered the banana symbol as its trademark in the Patent and Trademark Office, it cites a number of instances in the complaint of its use on goods to identify them as originating with the Velvet Underground. One example was a 2001 license granted to Absolut Vodka by the VU to use the banana design in an “Absolut Underground” national advertisement. (It is interesting to note that the Warhol Foundation also licensed one of its images to Absolut Vodka in 1994, according to its registration of the ad design in the Copyright Office.) The VU set out the elements of its claim to trademark protection: continuous use in trade or commerce for over five years, the retention of control over the use of the image to protect the buyers and to assure themselves that the goods in question are of the quality and type that the implied endorsement by the VU warrants. Consequently, the suit claims that the Foundation’s use of the banana design is likely to cause consumer confusion and lead to the belief that there is an affiliation or association between the VU and the Foundation’s licensee, which would cause the licensee to receive the benefit of the VU’s goodwill and reputation established over many years. This unauthorized use by the Foundation is claimed as a false designation of origin and unfair competition under §43 of the Lanham Act (15 U.S.C. § 1125) in Count II of the lawsuit, in which the VU also requests an injunction against the defendant asserting any right, title or interest in the mark, in addition to damages and profits received by the defendant Foundation from the use of VU’s trademark.

In its last claim for relief, the VU noted that the Foundation licenses many of its Andy Warhol art images for a range of products from stationery, clothing and watches to snowboards. The many images and designs owned by the Foundation have a fair market value of $120 million, and the licensing revenue earned from them is in excess of $2.5 million a year. With that in mind, the VU, in its count for unfair competition under New York common law, states that with all the lucrative images available for licensing by the Foundation, there was no economic need to use the banana design in its licensing activity. The complaint asserts that as an Andy Warhol design, the banana design is “fungible” to the Foundation, which can substitute any number of other Warhol designs it actually owns and which are in high demand by licensees. To the VU, the design is “not merely the graphic reproduction by Andy Warhol of a piece of fruit”; it is the “iconic” Velvet Underground Banana. A claim of misappropriation under the New York Common Law of the plaintiff’s benefits and property rights in the mark and its potential earnings follows.

This leads to a claim for exemplary damages from the Foundation as a kind of “greedy corporation” sanction, a demand for the Foundation to account for all monies and profits received so far for the licensing of the banana design, with interest, and a request that the court award costs, attorney fees and damages. For the Lanham Act violations, the VU also asks for treble damages, an injunction under 15 U.S.C. § 1116 (§ 34 of the Lanham Act) and an order under §1118 (§ 36 of the Lanham Act) that the defendant destroy all copies of the infringing products in its possession, custody or control, including products manufactured by defendant’s licensee. That would presumably lead to an epic bonfire of iPhone and iPad cases, sleeves and bags!

The Velvet Underground spends a considerable amount of space in the complaint reciting the history of the band, its legendary yet short lived status, and its iconoclastic music, which caught the attention of many young musicians. The album in question that contained the banana image was not a big seller at the time of its release, but has been described as “the most prophetic rock album ever made” by Rolling Stone, and twenty years after its release was recognized as one of the great rock albums and the Velvet Underground as one of the most influential bands of all time. Ironically, the members, who were known for their rejection of commercial values and their uncompromising attitude toward music, now earn income from the licensing of the iconic banana image to supplement their royalty income from their music. Even so, the Warhol Foundation’s appropriation of their trademark to add to their multimillion dollar annual earnings is rightly characterized as a usurpation of the band’s reputation and goodwill, one that is hurting the market for their own trademarked goods. It is also possible that the thought of losing millions of licensing dollars from Apple to the Foundation rankles the Velvet Underground’s members, making them think back to their anti-establishment days of the 60s when their integrity was about all they had, and they would not let it be compromised and stolen by a big corporation. Their continuous use of the iconic image that represents their band over many years as a trademark on their own products saved them from losing their goodwill and earnings to a much bigger and richer entity.

© 2012 Mary Ellen Tomazic

Case Comparison – Entity Production Inc. v. Psychotic Records, Inc. and Bridgeport Music, Inc. v. Dimension Films – the Current State of Music Sampling

January 24, 2012 articles Comments Off on Case Comparison – Entity Production Inc. v. Psychotic Records, Inc. and Bridgeport Music, Inc. v. Dimension Films – the Current State of Music Sampling

Mary Ellen with Ed from Midnight Syndicate at Cinema Wasteland 3/31/12

Technology since the 90s has driven and ultimately reigned in the unauthorized use of copyrighted material, especially music. From the widespread use of unlicensed music samples in the early days of hip hop to the rise of clearinghouses for the licensing of samples currently, musical artists have become more willing to pay for others’ works used in their creations. Many musicians formerly espoused a “live and let live” philosophy when it came to enforcing their ownership rights in their compositions and recordings. However, when digital technology allowed individuals to upload, download and share their music collections and obtain music without paying for it through the internet, the record companies and artists started to feel the pinch. With reportedly millions of dollars in lost sales through organized sharing sites such as Napster and Grokster, some high profile artists launched a war against unauthorized distribution and use of their music, Metallica in particular. The Napster lawsuits led to agreements that benefited both the artists and satisfied the public’s desire for convenient access to music. Now Napster is a pay site and ITunes distributes more music than any record company on earth.

Similarly, musical artists grew weary of other artists using parts of their recordings without permission in their new recordings. Arguments that the excerpts taken were too small to be actionable (the de minimis claim) were common in copyright infringement cases, which required “substantial similarity” between the original composition and the new song. This standard was used in sampling cases until 2005, when the Bridgeport Music, Inc. v. Dimension Films, Inc. case was decided. The Bridgeport case established a bright line test for copyright infringement by music sampling, stating that no matter how minimal the amount taken, physical copying of any part of a sound recording constitutes infringement. The only issue is whether the actual sound recording has been used without authorization. The 6th District Circuit Court of Appeals based their analysis on section 114(a) of Title 17 of the U.S. Code, the 1976 Copyright Act, which sets out the exclusive rights of copyright in sound recordings, including reproducing the work in copies or phonorecords, and the right to prepare derivative works based upon the copyrighted work. In short, only the copyright owner of a song may sample any part of that song. IN Bridgeport, the defendants had used a two second sample of a guitar solo from a George Clinton and the Funkadelics song in a tune that was recorded and then used in a movie soundtrack. The lower court went into great detail about the distinctiveness of the riff taken, how it was looped and used in five parts of a new song. The appeals court threw that analysis aside in stating that once a copyrighted sound recording has been digitally sampled, there is infringement and no de minimis analysis should be undertaken. The test is still based on substantial similarity for compositions (recall the “My Sweet Lord”/”He’s So Fine case in the seventies), but the “physical taking” involved in sampling sound recordings amounts to copyright infringement no matter how small the part taken or how the parts may have been changed.

As mentioned, this case established a new rule that sampling is never accidental, and that if you want to sample, you had better get a license. Most music publishers and record companies have instituted licensing policies to avoid litigation over sampling. The court hinted at some possible “free” sampling opportunities with “a large body of pre-1972 sound recordings that are not subject to federal copyright protection.” The court acknowledges that some artists and companies will still choose to sample and take their chances. Such is the case claimed in an action filed recently in U.S. District Court for the Northern District of Ohio in Cleveland entitled Entity Production, Inc. v. Psychopathic Records, Inc., which involves the horror/goth band Midnight Syndicate suing the hip hop group Insane Clown Posse for copyright infringement by sampling. The case has not gone to trial yet, and is probably going to be heard in early 2012, but the complaint sets out a compelling argument of blatant unauthorized physical sampling. In an artfully crafted complaint, attorneys for Entity Production, Inc., which along with its music publishing division, Linfaldia Records, owns all rights to the Midnight Syndicate compositions and recordings, simply and powerfully detail what was done and who did it. Civil Rule 8 requires only that complaints contain a “short and plain statement” showing entitlement to relief, and Entity’s statements recite the copyright registration certificate numbers for the seven compositions and recordings and the fact that they were registered before the infringement. Ownership of the compositions and recordings is specifically claimed and identified through assignments by the musicians to their music publishing and record companies. The timeline goes from the discovery of the infringement in 2009 through the cease and desist letter sent to Psychopathic Records by Entity’s attorneys, which was ignored, through a new discovery of unauthorized use by sampling in 2011 on a new Insane Clown Posse recording. This no doubt led to the claim that the infringement was “malicious and purposeful”, especially since the defendants were warned to make a licensing agreement in the 2009 letter, and never did for any of the recordings taken, and even took a new sample in 2011 after the warning letter. The defendants are accused of taking “substantial excerpts” of seven Midnight Syndicate recordings, which were used in their original state with vocal overdubs and looped to repeat throughout the new recordings. The excerpts are easily recognizable and are not altered in any way, but are used as the entire musical beds for the new recordings. Insane Clown Posse even claimed copyright in the new recordings containing Midnight Syndicate’s recordings, with the legend “All Rights Reserved”! Direct and vicarious liability for infringement is placed squarely on the principals of Insane Clown Posse, Joseph Utsler aka Shaggy 2 Dope, and Joseph Bruce, aka Violent J, who run the entire ten million dollar a year operation consisting of sound recordings of several artists, merchandise of all types, and even professional wrestling. The complaint also lists the I.C.P. trademark for all the merchandise and recordings as evidence that the principals of I.C.P. personally sampled or directed the sampling of Midnight Syndicate recordings, and has direct financial interest in the exploitation of the infringing works as shareholders of Psychopathic Records.

Entity lists the sales figures from SoundScan for Insane Clown Posse and notes that the bands within the company all perform and sell merchandise in this district, simultaneously giving a reason for the venue being appropriate in Cleveland and setting up a claim for the maximum amount under the Copyright Act for statutory damages, or in the alternative, the opportunity to prove damages at trial. The statutory damages prayed for are $150,000 for each separate infringement of the seven compositions and the seven sound recordings, totaling $2.1 million.  IF the case goes to trial, the damages could conceivable be a lot more due to the harm to the market for Midnight Syndicate songs and the large amounts of revenue generated by the sale of I.C.P. recordings and merchandise, which could well be partially driven by the use of the infringing samples in the songs. The cease and desist letter also asks Psychopathic Records for a list of any licenses issued for the use of the recordings incorporating the infringing excerpts in motion pictures, television programs, commercials, and for any public performance revenues from the tunes containing the infringing samples.

The complaint paints such a strong picture of infringement it almost seems iron clad, and those who have compared the Midnight Syndicate songs with the Insane Clown Posse and other Psychopathic Records songs including the sampled excerpts have no trouble recognizing them in the infringing works. The evidence of infringement is so clearly mapped out in the complaint that I predict that the case will be decided against Psychopathic Records on the pleadings alone, or that there will be a settlement before the case goes to trial. If the case does go to trial, I expect a citation to the bright line test in Bridgeport case will be one of the main references in support of Entity Production’s position The amount and substantiality of the samples and the notice of infringement letter sent to the defendants will foreclose the defendant’s possible claim of fair use of the samples.

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