Reed Elsevier Sues Punk Band Over Parody Logo That Was Discontinued Years Ago

from the daily-trademark-variety dept

brian williams alerts us to the news that the punk band The Vandals was recently sued by publishing giant Reed Elsevier because back in 2004, the band put out an album that used the font used by Hollywood trade publication Daily Variety for its own name on the album cover:


After the album was released, the band and its record label were sent a cease-and-desist over the logo. Rather than fight it (and they had a strong parody case), the band and the label complied with the C&D and stopped using the logo, replacing it with the one you see at the bottom of the image above. The Vandals seems quite confused over the nature of the lawsuit, seeing as they complied with the C&D more than five years ago:

The Daily Variety claims that our old logo for Hollywood Potato Chip, which is a parody of the Daily Variety logo commenting on the materialistic culture of Hollywood, is still on the Internet and they are suing us for this. We agreed not to use this logo anymore and we have no product for sale with this logo so their claims that we are intentionally using it and harming the Daily Variety are ludicrous.

We do not have this logo, or any other of their logos on any of our sites under our control. They are telling us that it is still on the Internet but they wont tell us where it is. Instead, they have demanded a HUGE sum of money. I mean HUGE, OUTRAGEOUS, and IMPOSSIBLE TO RAISE; and $25,000 for their attorneys to cover all the damages they have suffered from what they call a breach of our settlement agreement.

We have breached nothing. We are just a punk band and a small insolvent record label trying to keep stuff on the shelves and pay royalties to other artists.

Website The Wrap asked Reed Elsevier for comment and got the following message, which doesn’t address any of the actual issues:

“The stylized VARIETY mark is a very well known and valuable trademark which the Vandals misused,” Henry Horbaczewski, counsel for Reed Elsevier, wrote in an e-mail message to TheWrap. “We sued them, and they accepted a settlement agreement in which they promised to stop misusing our mark, because we wanted to stop the misuse, not their money. They then ignored their agreement.”

Horbaczewski added: “[Vandals drummer Joe] Escalante is a lawyer. He should have known the consequences of his actions.”

It’s difficult to see how they have much of a case unless there’s a lot more going on here. First of all, the use of the logo here is almost certainly protected as a parody use — and it’s difficult to believe that anyone (moron in a hurry or not) would face a likelihood of confusion and believe somehow that the album was endorsed or supported by Daily Variety. Even so, if it’s true that The Vandals are not selling anything with this logo, then it’s difficult to see how Reed Elsevier can claim that this is “use in commerce.” This whole thing seems like a pointless lawsuit for no reason whatsoever. Perhaps Reed Elsevier’s lawyers would be better served making sure that the company isn’t publishing fake, ghost-written journals at the behest of industry interests, rather than suing a random punk band for a parody…

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Comments on “Reed Elsevier Sues Punk Band Over Parody Logo That Was Discontinued Years Ago”

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66 Comments
Anonymous Coward says:

Re: Re: Re:

font, layout, shape, color, small word to the left in a colored box. the stylized swoosh. size ratios between the parts. 100% of the elements are the same, only the word is changed. blur both of them a bit until you cant read the words and most people would think variety. open and shut case really.

dorp says:

Re: Re:

the parody case would be tough to prove, because i see nothing funny or any grand social commentary.

You know know who the The Vandals are, right? You do know that this is part of the album cover, right? You have listened/read the lyrics of the songs, right?

I could go on, but the basic idea is still the same: you have no idea what you are talking about. The album cover is part of the overall message of the album.

dorp says:

Re: Re: Re: Re:

so what part of variety are they specifically parodying?

Variety being a well know news source (as they claim themselves) and thus being a good representation of the establishment that the album attacks. Again, you obviously know nothing about the group, nor the album, so concept of “context” does not even seem to occur to you.

Anonymous Coward says:

Re: Re: Re:4 Re:

umm, no. sorry. trademark is a trademark, the logo used by the band is a deliberate copy of that trademark. all of the things listed are part of what makes up that duplication. if they want to claim parody the parody would have to be clear which it is not. it just looks like someone stealing a logo.

zegota (profile) says:

Re: Re:

I tend to agree, actually. The law says that using someone’s logo is okay if you’re parodying them, but you can’t use someone else’s IP to parody something else. This album cover certainly doesn’t seem to be parodying Daily Variety in any way. That doesn’t speak to this specific lawsuit, however, since the band did indeed cease and desist; Variety doesn’t seem to have a case. You can’t go back and change the past, you can only stop infringing in the future.

Of course, that’s the law, not the morality. In a just society, they *would* be able to use that logo with no problems.

Richard (profile) says:

Re: Re: Re:

Trademark law is for the protection of the consumer. Variety would only have a case if the Vandals were selling a magazine. They are not – they sell music. There is no case. They do not even need to use the parody defence.

They only need to use the “Apple defence” (as used against the Beatles – we sell computers not music ….er that one’s wearing thin now though).

Babooshka says:

Lawyers and Publishing Giants

I can’t wait till lawyers are somehow replaced by technology of some sort. There’s a profession that advances humanity in no way shape or form.

The publishing industry produces garbages, is about to be demolished by the rise of self publishing and ipad type devices, and is taking the let’s sue people to protect and add to our revenue stream model.

Dinosaurs must have roared loudly before their extinction; here’s to the extinction of publishing multi-nationals and their armies of crony lawyers.

Anonymous Coward says:

Google "Hollywood Potato Chip"

The issue is probably being caused by the fact that if you google “Hollywood Potato Chip” and take a look at the results, especially image results, it appears that all of the music download services including Amazon.com are using the old album cover image.
I am interested to know if Daily Variety has any recourse if The Vandals are not putting the album out with that as the approved artwork.
This may all be done by over-zealous fans but I guess the next lawsuit will be against Green Jelly since you can still find their old Green Jello album cover online and repost it too.

Ben says:

Lawyers. Heh.

First, I’m not convinced that simply because The Vandals complied with a S&D order, that they surrender their argument that the usage was parody, which it was. Look up parody. Do some homework.

Second, I think Daily Variety has it backwards. Joe Escalante is a lawyer. He is a music business laywer, and he knows other lawyers. Someone has got to be a moron in a hurry to think that there’s a chance in hell that this is going to net Daily Variety anything.

The Vandals are dumb. They’ve always reveled in that. They’re not, however, stupid.

Jesse says:

This is a Joke.

This is absurd. You can’t copyright a font. It is clearly a parody. A parody by a non-mainstream punk band. Whether the parody was highly effective or not carries no weight. The intent was parody. The Vandals did not use Daily Variety’s actual logo. They changed their artwork when DV called them out on it, when they could have actually fought it. What more can The Vandals do? Spend the rest of their lives scouring the internet for the original art that some kid posts on his blog? Obviously the publishing industry is hurting for these clowns to be speculatively hunting down money which isn’t rightfully theirs for “damages.” I’m sure the Vandals almost use of the DV in 2004 has cost the Daily Variety a HUGE sum of money.

The Vandals (profile) says:

The Daily Variety

Here’s a couple clarifications. I loved this article by the way.
The album art concept is a parody of the materialism of Hollywood business machine. The Daily Variety was parodied because they call themselves the “Bible of Show Business.” they are the heralds of what is being mocked by our band.

Regarding the contract issue, the blogger was right who said that if we signed a settlement agreement, they are just suing on the contract. However, we did not breach the agreement, we do not control myspace music, amazon, and youtube. This is where the Variety made their mistake. Since they are abusing the permanent injunction, which carved out 3rd party postings and provided a 30 day cure period, both of which were ignored by Variety’s lawyers when they filed their law suit, we are taking the occasion to try to lift the permanent injunction.
It was signed under the duress of a bullying law firm with 950 attorneys at their disposal.
If this is what they are going to do to us for the rest of our lives we have to stand up and fight back this time.
They asked us for $75,000 and want us to sign something to say that if this happens again we owe them twice as much. If what happens? Someone uses the internet? It’s ludicrous.d
Thanks for your support.

brian williams (profile) says:

Re: The Daily Variety

I shared The Vandals’ story with techdirt and some other ip law and tech contacts aft learning of Elsevier’s ugly lawsuit [ my kids are friends w josh’s kids and your band is the shit 🙂 … Plus me a lawyer 2 and I’ve a strong fair use interest ].

I originally contacted some folks up at Stanford Center for Internet and Society Fair Use division. They suggested they could possibly be interested in your f-‘d up situation except for the fact that the matter seemed to them to be fully stuck in post settlement contract bullshit arena rather than a righteous fair use defense (which The Vandals have obviously always held against Elsevier).

Perhaps you should give the Stanford Center for Internet and Society’s Fair Use Project a call yourself — Here’ s the Fair Use contact info … Stanford Fair Use division. Anthony Falzone @ anthony.falzone@stanford.edu.

Get the case removed to Cali Federal District court soon and fight them

Cheers

Chadams (profile) says:

Just curious...

I was going to comment on Joe being labeled the drummer as well (I know off topic and irrelevant), but my main question would be how many of The Vandals’ fans would have even known that was the DV’s logo? I am not trying to suggest their fans have any sort of intellectual deficiency, so much as not caring about this publication or its material.

Travis says:

how I spend a friday night right!

In the past year, Curious why the Vandals didn’t receive more press for their song- the day that ferrah fawcett died.Especially since she did.

PLus,

I always thought this logo looked like they were going for arabian nights ali babba vibe. who the hell reads variety besides people who get haircuts or oil changes.

SPC4 Wage Slave says:

Chadams

Being neither from California, nor associated with any form of entertainment buisiness myself I was not familiar with DV at all. I come from what most people considder a “fly-over” state and couldn’t care less about the biz. I do however enjoy the vandals music and do consider myself a fan of theirs. The idea that the logo of a magazine like DV being used in album art is not a selling point to me. I bet you the majority of Vandals fans feel the same way. If the argument was that Vandals satirical album art helped sell more albums, I would dispute that in a heartbeat.

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