October 27, 2011 8:14am PT by Eriq Gardner
Poison Responds to Song Theft Allegations (Exclusive)
Poison, one of the most successful hair metal bands of the 1980s, is striking back in response to a new lawsuit that claims four hit songs were stolen a quarter century ago from another band. A lawyer for the group led by frontman-turned-reality-TV-celebrity Bret Michaels tells THR how the rock stars intend to defeat the copyright infringement claims. Put in lyrical form, it might go like this: Every rose has its thorn, just like every claim has its dawn, just as every sleeping plaintiff sings a sad, sad song.
The insanely long-gestating lawsuit was filed last week in Illinois federal court by Billy McCarthy and James Stonich, who were members of a Chicago band known as Kid Rocker, formerly signed to Atlantic Records and a fixture on the Hollywood club scene. In court papers, McCarthy and Stonich describe auditioning future Poison guitarist C.C. DeVille in 1984, and showing him songs they allege would become the basis for later Poison hits.
Mark D. Passin, attorney for the members of the group Poison, says the claims have absolutely no merit.
"Poison will vigorously defend against the baseless accusations alleged in the complaint," he says. "Obviously, if the Poison songs that are the subject of the complaint infringed any songs written by Plaintiffs McCarthy and Stonich they would have filed their lawsuit over 20 years ago when Poison released the albums on which the songs are embodied. It is unfortunate that success in the entertainment business often invites unmeritorious lawsuits."
Song theft allegations are not unusual, but it's not every day that a band faces allegations over material created so long ago.
In making the claim, Daniel Voelker, the attorney representing the plaintiffs, pointed to Taylor v. Meirick, a 1983 decision at the 7th Circuit Court of Appeals that suggested "the statute of limitations does not begin to run on a continuing wrong till the wrong is over and done with" and that plaintiffs could "reach back and get damages for the entire duration of the alleged violation."
Passin responds with his own case citations. He says: "In subsequent decisions, including one written by Chief Justice Posner, the 7th Circuit has held that the continuing wrong theory discussed in Taylor v. Meirick does not entitle a plaintiff to reach back and get damages beyond three years if, for example, the plaintiff knew or with the exercise of reasonable diligence would have known of the wrongful act."
In answering the lawsuit, Poison also intends to seek dismissal of the claims under the doctrine of laches because the Plaintiffs delayed too long before filing their lawsuit and that delay prejudiced Poison.
As for the intriguing question of why it took Kid Rocker members more than two decades to launch a claim, Poison's lawyer promises to get sworn answers about this during the litigation.
Here's one of the songs in dispute -- Poison's "Talk Dirty To Me"
The plaintiffs say that the song was stolen from them, and Poison shot this music video in order to avoid being dropped by their record label at the time.