Fair Use Doctrine Archives – Barely Legal Radio – Free Legal Advice « Barely Legal Radio – Free Legal Advice

By: Barely Legal Radio  09-12-2011
Keywords: Legal Advice, Free Legal Advice

Fair Use Doctrine Archives – Barely Legal Radio – Free Legal Advice « Barely Legal Radio – Free Legal Advice

Vandals Singer Dave Quackenbush's shirt says it all.

The Hollywood Trade Publication is presently suing the Vandals and Kung Fu Records in Federal District Court in Delaware in what has to be one of the most frivolous and abusive lawsuits of all time.  In 2004, The Vandals released a CD called Its cover design was a parody of the Hollywood “system” complete with a parody of the logo for the Daily Variety, who call themselves the “Bible of the Entertainment Industry.” Although this was an artistic expression fully protected by the and the 1st Amendment of the U.S. Constitution’s guarantee of free speech,  the Daily Variety and their parent company hired the 950 attorneys at to sue the Vandals in Federal Court in California over this artwork for several hundred thousand dollars in penalties and threatened litigation costs.

The Vandals were disgusted by this abuse of the legal system and disregard for the Constitution by a magazine that supposedly served the community of the arts, but did not have enough money to fight these monsters so they settled and changed their artwork with complete cooperation. In 2004 The Vandals signed a Settlement Agreement with Variety that promised not to use the logo anymore. However, if by fault of the Vandals, an inadvertent use of logo appeared on the Internet somewhere, the Vandals had a 30 day “cure period” to take it down before they could be sued again. If the use could not be removed by 30 days, or if the Vandals refused, the Vandals would pay Variety a liquidated damages amount of $50,000 plus attorneys fees.

J. Paul Williamson, Lead Attorney on Lawsuit Against The Vandals

On February 5, 2010, J. Paul Williamson of Fulbright & Jaworski claims to have sent out a letter to the Vandals stating that there were a few “forbidden images” on two of the Vandals/Kung Fu Records’ sites. However, by the time the law firm got ahold of the Vandals a few weeks later those images were “mysteriously” gone. When the Vandals explained to Mr. Williamson that, even if they were there at one point, they weren’t there “now” and so they were at the very least “taken down” within the allotted cure period.  Mr. Williamson, really interested in getting this $50,000 and $25,000 in legal fees (for looking at our web site and sending a letter?) adamantly claimed that there was no such cure period.

He had a terrible argument, but that was his claim. “Pay us because we say we have proof that there was a forbidden image on the Internet somewhere, and there is no cure period, period.”

He also asked the Vandals to  complete 7 other “cure steps” that he made up that would among other things include a promise to pay them “double” the penalty if it happened again. If what happened?  Well, whatever they say happened, whenever they say it, with no cure period. In other words, he was looking for an easy way to extort hundreds of thousands of dollars out of a punk band and a small record label whenever he felt like it. This is what he calls a career in the field of law.

He also warned that if the Vandals didn’t agree to his demands, he would sue the Vandals in Delaware, and that would be extremely expensive, so the Vandals might as well just pay him what he wants to prevent such a disaster. The dumb part is that this guy, and the Daily Variety, and Reed Elsevier, just went too far. Even if the Vandals had this kind of cash lying around (did J. Paul Williamson get the memo on the state of the music industry?), nobody would agree to sign this ridiculous promise to pay more “next time” when “next time” is decided arbitrarily by the beneficiaries of this scheme.

Michael W. Conlon, Partner in Charge, Fulbright & Jaworski

So the Vandals decided to represent themselves, since they had no other options. Since Kung Fu Records is a Corp. it cannot represent itself so Vandals bassist Joe Escalante filed a motion with the Court to allow him, an attorney accepted to practice in California, to be accepted to practice in Delaware for the sole purpose of filing the motion to transfer venue back to California. Of course The Daily Variety has since filed papers to oppose this motion. Every time the Vandals file something with the Court, the Daily Variety files another motion to vex them into submission.

The biggest laugh is now that The Daily Variety has had to actually tell their story to the Court, they suddenly admit that the Vandals do have 30 days to cure any breach of the agreement.  Even though they tried to squeeze the Vandals for tens of thousands of dollars by repeating this lie over and over about “no cure period” they couldn’t tell that to the judge so they made up something even more ridiculous. This is their claim. They claim that although there is a cure period in the Settlement Agreement between the parties, the Vandals failed to cure  the “breach” by not paying Variety the $75,000 they asked for and signing the promise to pay double next time.

Of course this is laughable for many reasons but the most blatant is that this would make the cure of the breach more expensive than just not curing the breach and giving them the $50,000 plus actual legal expenses that the original Settlement Agreement allowed.The Vandals believe that this is just a bald abuse of the legal system and that the Daily Variety and Reed Elsevier should wake up and realize that they are also being scammed here. The argument was that if the Vandals are allowed to parody their precious logo, it would harm the Daily Variety brand. What could harm the brand more than taking part in an illegal shake-down that is frivolous, abusive, and directed at members of their own artistic community.

Thank you,

The Vandals, 2010

The information in this article was current at 06 Dec 2011

Keywords: Free Legal Advice, Legal Advice

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