Seattle Trademark Lawyer

Beach Boy/Appellant Mike Love

Beach Boy Mike Love appealed the dismissal of a derivative suit he brought on behalf of Brother Records, Inc. (“BRI”), the corporation that owns THE BEACH BOYS registered trademark, against the UK-based Sanctuary Records Group, Ltd. He also appealed the award of attorney’s fees against him.

The suit paralleled claims Mr. Love made in a direct lawsuit against Sanctuary. Sanctuary moved to dismiss Mr. Love’s claims on the ground that the related direct action had already been dismissed.

On July 8, the Ninth Circuit affirmed, in part because it found a corporation does not possess any right of publicity and in part because the cause of action did not implicate either a right of publicity or the Lanham Act since it arose in England.

“First, Love claims Sanctuary violated his own and BRI’s common law rights of publicity in the Good Vibrations promotion, by using his and The Beach Boys’s names, photographs, and likenesses to their commercial advantage without permission. In the Opinion, we held that Love’s claim was governed by English law, and English law does not recognize a right of publicity. In his district court papers, Love cited no California case that has recognized that a corporation has a right of publicity or otherwise has standing to protect the publicity rights of another. Nor did he cite any California case that has recognized that a band or group has a right to publicity. Even assuming BRI could bring a right of publicity suit on behalf of The Beach Boys, and that California somehow had an interest in the case because BRI is incorporated in California, England’s interest in this case is significantly greater.

The case cite is Love v. Brother Records, Inc., Nos. 08-55035 and 05-55973, 2010 WL 2781582 (9th Cir. July 8, 2010).

Photo Credit: Brian Peters

Plaintiff Kristen Colliander performing with the “Angels”

Seattle entertainer Kristen Colliander performs under the names Kaycee Cole and Kristen Collianeli.

She filed suit today in the Western District against Douglas Naftzger, d/b/a Goldberg Entertainment Inc. 

Ms. Colliander alleges that Mr. Naftzger and his company engaged her from February 2005 to July 2008. During that time, she says she created the “choreography, stage direction, custumes, and all other creative elements” in a burlesque-style song and dance tribute now known as “The Angels: A Pussycat Dolls Tribute.” She also claims she owns the ANGELS trademark in connection with the show.

Ms. Colliander claims that even though she’s separated from Mr. Naftzger and his company, they continue to use her “copyrighted material, trademark, unique pseudonyms, images, and likeness in promotional and marketing materials for infringing ‘Angels’ performances” without her permission.

Given her other allegations, Ms. Colliander not surprisingly also states: “There is no written instrument detailing the business relationship between Plaintiff and Defendants, including any assignment of ownership in any right, claim, or interest in and to any intellectual property or privacy rights belonging to Plaintiff, including performances, sound recordings, or other media.”

Along with copyright infringement, Ms. Colliander states claims for misrepresentation under the Lanham Act, common law trademark infringement, and violation of Washington’s right of publicity statute.

Defendants have not yet answered the complaint.

The case cite is Colliander v. Naftzger, No. 10-0536 (W.D. Wash.).

Former Led Zeppelin bassist John Paul Jones recently complained to The Wall Street Journal that it’s getting harder for new bands to find cool names that haven’t already been taken.

“Think of a great band name and Google it, and you’ll find a French-Canadian jam band with a MySpace page,” he said.

Kudos to the WSJ for exploring this rich area, which unfortunately is the first experience some have with trademark law.

Its story, “From ABBA to ZZ Top, All the Good Band Names Are Taken,” is laden with tales of trademark woe.

For example: “In 1992, a newly formed band from Scotland called Captain America was endorsed and invited on tour by Nirvana front man Kurt Cobain, who was at the peak of his fame. After a bidding war, Captain America was signed by Atlantic Records, just as Marvel, publisher of the Captain America comic book, sent the band a cease-and-desist [letter]. With its first U.S. record already in the pipeline, the group rechristened itself Eugenius, a reference to leader Eugene Kelly.”

“‘Overnight their career deflated,’” a talent scout recalled.

This underscores the need to clear a name before investing in it — though that’s easier said than done.

The article says Rovi Corp.’s giant database of musician names is adding 6,521 new names per month.

Since you asked (ok, one person asked), here are the slides from my presentation last week for Washington Lawyers for the Arts: “Bands and Brands: Essential Trademark Law for Musicians.” Hopefully they’re of interest.

Next up? This Thursday I’m speaking to the University of Washington’s Technology Law Society about the PRO-IP Act (STL post here). Can’t say as I’m an expert on this statute, but hopefully I’ll learn a little something between now and then.

On Aug. 13, the California Supreme Court declined to consider an appeal involving ex-members of The Doors and the damages they were found to have caused by touring in 2003 as The Doors of the 21st Century, Law.com reports.

The article states the decision (or lack thereof) cemented the $3.2 million in damages that keyboardist Ray Manzarek and guitarist Robby Krieger must pay drummer John Densmore, the parents of the deceased lead singer Jim Morrison, and the parents of Mr. Morrison’s deceased wife.

Messrs. Manzarek and Krieger could be liable for another $2 million in attorney’s fees. An appellate court is considering their appeal that the award was excessive.

In the suit, Mr. Densmore said he didn’t object to Messrs. Manzarek and Krieger playing The Doors songs, as long as they didn’t call themselves The Doors or use the former band’s logo and imagery.

Messrs. Manzarek and Krieger made use of The Doors’ name, logo, and imagery anyway in 2003 when they went on tour with Ian Astbury, former lead singer of The Cult. The tour netted $3.2 million, none of which went to the plaintiffs.

Their doing so was found to have breached the band’s written contract requiring unanimity on business decisions.

In March, the Ninth Circuit found in Mr. Manzarek’s favor in a bad faith claim stemming from his insurers’ refusal to pay the plaintiffs’ damages award. (STL post here.)