October 21, 2011 6:41pm PT by Eriq Gardner
Hair Band War! Did Poison Steal '80s Hits From Another Band?
Members of Poison, including frontman-turned-reality-TV-celebrity Bret Michaels, have been hit with a lawsuit claiming that four of their songs were stolen from another band.
The lawsuit, filed Wednesday in Illinois federal court, isn't over recently created work, but rather over old hits, including "Talk Dirty To Me," "I Won't Forget You," "Fallen Angel" and "Ride the Wind." The era of 1980s hair metal might be over, but has the statute of limitations run out on song theft alleged to have happened more than 20 years ago?
The plaintiffs in this new case are Billy McCarthy and James Stonich, who were members of a Chicago band known as Kid Rocker.
This band was formerly signed to Atlantic Records and is said to have been a favorite on the Hollywood club scene in the early-1980s. During those years, they created a number of songs, including "Hit and Run" and "Wham Bam Slammin' Romance," which are said to have later been incorporated by Poison in their own work.
How might that have happened?
According to the plaintiffs, in 1984, before guitarist C.C. DeVille joined Poison, he auditioned for Kid Rocker. During this time, he allegedly was shown completed and formatted songs and was lent master-recorded studio tapes.
Kid Rocker disbanded that year, but McCarthy purportedly presented songs for DeVille's use as a member of another band, Screamin' Mimis. Then DeVille joined Poison, and the rest is history. Poison became one of the stars of the glam era as their debut album, Look What the Cat Dragged In, sold approximately 4 million copies.
Now, 25 years later, McCarthy and Stonich are suing members of Poison plus Capitol Records and EMI Music for allegedly infringing the copyright on their songs. The plaintiffs are demanding disgorgement of all profits from the songs in question, statutory damages for willful infringement, and an injunction that prevents Poison and Michaels from performing this allegedly stolen material.
Asked why it took the plaintiffs so long to bring this case, Daniel Voelker, the attorney representing them, says it's a "good question," without going into an explanation. Voelker says that every time Poison sells a new album or performs one of these songs, it's a breach of his clients' rights,
Maybe. But Voelker is now looking to reach back and collect money from infringements made in the 1980s and onward.
Asked how the plaintiffs intend to get around statute of limitations, which has been typically been interpreted to limit claims to three years from when the infringement is discovered, Voelker points to an old case decided by respected 7th Circuit Court of Appeals Chief Justice Richard Posner.
In that case, Taylor v. Meirick, it was decided that:
"The statute of limitations does not begin to run on a continuing wrong till the wrong is over and done with...When the final act of an unlawful course of conduct occurs within the statutory period, these purposes are adequately served, in balance with the plaintiff's interest in not having to bring successive suits, by requiring the plaintiff to sue within the statutory period but letting him reach back and get damages for the entire duration of the alleged violation. Some of the evidence, at least, will be fresh" (itl ours)
Over the years, many other courts and circuits have rejected this theory of "continuing wrong."
For example, the 5th Circuit has said "[t]he Taylor court seems to have expanded the definition of infringement to include a defendant's actions outside the limitations period" and the 9th Circuit has ruled that the copyright statute "does [not] provide for any reach back if an infringement occurs within the statutory period."
But is the Taylor standard still good in Illinois, where Poison is suddenly facing a claim over millions of dollars in profits for songs created nearly three decades ago? Stay tuned.