July 30, 2013 10:14am PT by Eriq Gardner
Indie Rock Disputes: Expelling Band Members Isn't Easy
To misquote Leo Tolstoy, every unhappy indie rock band is unhappy in its own way.
Take Gogol Bordello.
Eugene Hutz, the singer for the popular New York gypsy punk band, is being sued after he "brazenly absconded with approximately half a million dollars from the bank accounts of the Gogol Bordello entities and deposited those funds into the accounts of new companies which are wholly owned by Hutz."
The lawsuit comes from the band's guitarist, Oren Kaplan, on behalf of himself and the group's corporate entity. Hutz allegedly characterized the money transfers as "loans" and decided to pay himself a salary among moves that are termed to be "self dealing acts."
The complaint goes onto to say that Hutz "has effectively and unlawfully 'locked' plaintiff out of the group," and has done things like secretly making a promotional deal with Coca-Cola. According to the lawsuit, "Hutz accomplished this ruse by feigning concern for plaintiff (whose mother had just passed away) and encouraging plaintiff to take an extended leave of absence from the group, during the very time when the group would be recording its song for the Coca-Cola commercial."
That's not the only indie rock dispute on the docket.
Take Ariel Pink's Haunted Graffiti.
In August, 2012, drummer Aaron Sperske sued after the rest of the band expelled him. He claimed a breach of an oral partnership and sought an undivided 25 percent share of the copyright in songs from the group's second album, Mature Themes.
The rest of the band has had a bit of trouble getting its act together to defend the lawsuit. As detailed in a ruling last week, the band didn't answer the lawsuit at first, which led the court to enter a default judgment. Then, Ariel Rosenberg ("Ariel Pink") and others found a lawyer, who answered the lawsuit, but then withdraw over irreconcilable differences and failure to pay. Sperske looked for the knockout win with a summary judgment motion, and the band failed to respond.
But for all of that, Sperkse still suffers a setback.
U.S. District Judge Otis Wright holds that the plaintiff hasn't sufficiently made the case there was a partnership agreement. Sperske hasn't shown that his profit sharing was anything more than wages and further, "even if some of the hallmarks of a partnership are present," writes the judge, "Sperske has not proven the primary element of a partnership: participation in the band's management. Rather, evidence suggests that Rosenberg was the main force behind the band and controlled the band's creative and business decisions, including personnel decisions."
As for the copyright claims, the judge won't rely on a certificate of registration issued by the copyright office that listed band members including Sperske as co-authors of Mature Themes.
"The Court finds it suspicious that this certificate was issued several months after Sperske initiated this suit," writes the judge. "Logic dictates that this certificate was filed without consent by Rosenberg, Gilmore, and Koh, because this certificate was filed by Evan S. Cohen, Sperske's attorney in this case."
The judge vacates the default judgment and denies a summary judgment. The ruling could mean that the dispute is headed for trial -- where Ariel Pink will presumably need to find a good lawyer.
The attorney representing Kaplan in the Gogol Bordello dispute is Jeffrey Movit from Mitchell Silberberg & Knupp.