The Vandals Represent Themselves in Federal Court Against ‘Daily Variety’ and Their 950 Attorneys
by Joe EscalanteNow that all the papers have been filed with the Judge in Delaware, The Vandals have released the following summary of their legal situation:
The Hollywood trade publication, Daily Variety, 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 Hollywood Potato Chip. 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.”
Warren Fitzgerald: Vandals Guitarist/Federal Court Litigator
Although this was an artistic expression fully protected by the Fair Use Doctrine of the U.S. Copyright Act, and the 1st Amendment of the U.S. Constitution’s guarantee of free speech, the Daily Variety and their parent company Reed Elsevier, Inc. hired the 950 attorneys at Fulbright & Jaworski 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 again. However, if by fault of the Vandals, an inadvertent use of the 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 within 30 days, or if the Vandals refused, the Vandals would pay Variety liquidated damages in the amount of $50,000 plus attorneys’ fees.
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 hold 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.
It was a very weak 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, and 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.
Since the Vandals did not agree to this, J. Paul Williamson, The Daily Variety, and Reed Elsevier sued the Vandals in Delaware Federal Court as punishment for not giving in to their demands. The best deal the Vandals could get on a Delaware attorney was Ashby & Geddes who offered to take the case if the Vandals would just place $20,000 in an escrow account and pay them $520.00 per hour with none of this being applied against the $20,000 escrow money.
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 licensed 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. But what could harm the brand more is taking part in an illegal shake-down that is frivolous, abusive, and directed at members of their own artistic community.
Please visit Vandals.com to see how you can help fight this lawsuit abuse.
Please purchase tickets for the fundraiser Vandals’ concert at the Glasshouse in Pomona, CA on September 10, 2010.
Thank you,
The Vandals, 2010
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33 Comments
Not a fan of Vandals, but this is worth supporting just to poke a finger in the eye of a worthless rag and its team of locusts.
This is why I oppose "Loser Pays" even though it would bring a lot of frivolous lawsuits to an end.
All you would have to do to win is throw more lawyers than your opponent can ever pay for at it and most people won't take the risk to go to court even if they have a legitimate claim (because having a legitimate claim is not a guarantee of victory in court).
My thoughts exactly!
Just listened to a bit of their stuff on their web site, and it is pretty fun.
Eat an Anarchy Burger and Then We Dance
don't know the vandals, but this is lawyers with way too much time on thier hands. why don't they shakedown a restaurant or business on disabilities claims, of get a class action suit for some bogus medical claim against a drug maker. oh wait, there are too many lawyers doing that already. why don't they get a job for the government, and start filing bogus suits against states, and sherrifs, oh wait they got that already too. well, why don't they open up a lemonade stand, and leave us alone!!
As a legal secretary for two major law firms for 23 years, I quickly discovered the sad truth of how a major law firm really wins its cases – not because the law is on their side or their case is just but because they are bigger than their opponent. A law firm's size gives it the resources to stretch a case out for years and years, burying the plaintiff under countless filings until finally the exhausted plaintiff can't go on any longer. I've seen this tactic before and it matches exactly what Fulbright & Jaworski appear to be doing.
They've made one mistake, however – their plaintiff isn't stupid. I am amazed at the clear, precise language of The Vandals' argument above; it is on a par with some of the best legal briefs I've ever read. And the band doesn't grasp only legal procedure – it also understands the 'court of public opinion' as proven by their very smart move in publicizing their case on "Big Hollywood". It appears that Fulbright & Jaworski have bitten off more than they can chew. My money is on The Vandals.
I am currently seeking a guardianship over my mother, who is suffering from severe dementia. You don't have to tell me anything about how ridiculous our legal system is, or the shocking lack of intelligence among lawyers. I thought law school was supposed to be hard?
It's not a guarantee, but there are no guarantees in life. And sometimes, probably more often than we think, the just cause wins. There's a strong chance Variety would end up paying for this, regardless of how many lawyers they bring to the table. In a jury trial they would end up getting massive penalties imposed because the band would be seen (rightly) as the abused.
There are other things we need to do besides loser pays, but loser pays would go a long way to end the abuse.
Variety has just released a statement responding to Mr. Escalante's article:
"Waaaaaaaaaaahhhh waaaaaaaaahhhhhh but you can't make fun of the heralded Variety!"
I hate political correctness. I actually watched The Killing Fields today and that only furthered my opinion.
Law school is a gigantic memorization game: Memorize the laws; and memorize cases whose precedents can help you circumvent the laws. An argumentative, obnoxious personality and a desire to steamroll the poor schmucks on the other side are minimum entry requirements.
Lawyers are necessary but not necessarily desirable. Our society doesn't like sewage, but we need sewer cleaners…
Might maybe need to have a "draw Mohammad" day only aimed at "Variety", hm?
What state are you in?
Texas. And thanks for the obvious concern, Buck.
Great idea! let's all draw the Variety logo!
I didn't realize that Daily Variety is so hard up for cash to sue for $75000. It sounds like you guys have them by the balls, for now anyways. Good luck!
I am displeased to report that ever since this issue resurrected itself back in April, much of public opinion has been with the magazine and against the band. I've seen countless tiresome comments along the line of "Karma's a b___h, LOL" and "This is what Joe gets for f___ing over Stevo."
Bummer. Here's a useful site which might help. http://www.martindale.com/
You can look for lawyers in your area and select "guardianship and conservatorship" in the practice area box to find someone who knows what he's doing. Guardianship is done under the probate code, so if you search by "probate" that might help too. "Mental health" is another possible practice area for your search. Your average personal injury lawyer will not likely be familiar with guardianship. The practice of law keeps getting more and more specialized and one size doesn't often fit all anymore, thanks to the proliferation of laws by legislators hell bent on looking like they are "doing something."
All sock puppets, I bet.
Not likely. Joe has gotten FAR more than his fair share of enmity for doing what he did with the band's older material, and most of it has likely been reinforced by his appearances on this very site. The punk subculture, for all its anti-establishment cachet and its preaching of independence from brainless and rooted systems of tradition and thought, tends to close ranks solidly with the Left on political issues.
WTF are you talking about "public opinion" The "public opinion" of the owners of the mag???
This is clearly 10,000,000% lawsuit ABUSE. And then filing it a state ACROSS the country?? You must be an employee huh???
All 950 of those shakedown artists should be indicted for conspiracy, disbarred and their BMWs donated to charity.
The big mistake here was not finding a way to raise the money to fight this ridiculous lawsuit when it was first brought up and signing the original settlement which obviously isn't worth the paper its printed on.
Also, since Joe Escalante is a lawyer himself, essentially his services to the band are free. Theoretically, he can file motions till the cows come home and force DV and Reed Elsevier to spend exorbitant sums on fees to their own lawyers.
I'd not heard of this group, but I will now go out and buy some of their product… to help them AND to shove a very large stick in the eyes of the "legal profession".
"First, we kill all the lawyers." Shakespeare.
Liberals eating their own. Good thing that progressives are money-grubbing capitalists.
Yup, BigPop – they didn't realize they were suing a lawyer. I think that is SO cool! J. Paul Williamson so obviously did not perform his due diligence before he started this mess. That is so not going to look good on his yearly review. Snicker.
I mean the public opinion of punk fans who have decided to be idiots and root for the Vandals to lose this case because they think Joe Escalante's a sellout and an @$$hole.
Last time I saw the Vandals was 1985 (?) in the Cypress College basketball gym. Steve-o era. With the Dickies. Et al.
I'll try to make the Sept. 10 show. But expect to slam a little less. Than in 1985.
PS : Daily Variety scumbags can suck it. Hope you guys are planning some kind of press-magnet ploy to embarrass them.
Apparently if I was a lawyer I'd be able to see how Williamson's little reindeer games over the internet images differs from criminal blackmail.
But I'm not a lawyer.
First off- The Vandals are one of my favorite punk bands of all time! This is a perfect example of how the legal system was never intended to work. Our founders are rolling over in their graves because of things like this. Performers, entertainers, musicians, actors, directors, writers- Beware of the Daily Variety
i think a Loser Pays should only apply to the person filing a suit not against a defendant
Obviously the Punk scene is showing signs of ADD/ADHD if they are tending to side with Variety on this one. If that is true, then perhaps they are so busy rebelling, and "acting out", that they cannot do basic research and find out what the heck "FAIR USE" is. The important part of this law, is that Fair Use allows for relatively unfettered use for purposes of PARODY (so, Mel Brooks and Co, in many cases, did not need general releases and such when producing Young Frankenstein). It is likely that incidental uses of logos and so forth, not intrinsic to the satire or parody itself may need some sort of releases. By this I mean that a parody about Hollywood, would not be allowed to show a billboard for Coke, unless getting the legal stuff in order for the passing billboard. This kind of stuff is done in all movies, and actually has various possible billboard subjects competing with each other, in many cases. In this case, though the "Hollywood" theme seems to demand that iconic items like Variety, are intrinsic to the parody.
What could be a better, more apt example of parody, than for a musical group to use a tinsel-town rag's logo style in order to poke at Hollywood? Answer-None, there is none more apt. [extra points for those who notice the similarity to a famous Rock Parody movie here..]
Hopefully, Joe and the Vandals will take the advice here and try to raise some money, since he could probably use legal research, and document preparation help. Perhaps he can even use some organization and planning assistance. Anyway, I sure hope the Vandals and Joe prevail. The law is on their side, and that is helpful assuming that a well run trial actually occurs.
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