April 15, 2011 9:04am PT by Eriq Gardner
Variety Loses Round One to Punk Band In Album Cover Dispute (Video)
Hollywood trade newspaper Variety has lost in its attempt to pursue a trademark claim in Delaware against the punk band The Vandals. The case will now move to a California federal court, where Vandals bassist and lawyer Joe Escalante, who is representing the band in the lawsuit, is based.
First, some background on the case:
In 2004, the Vandals released their 10th album, "Hollywood Potato Chip," which posed the band's name in lettering on the cover quite similar to the trademarked Variety logo.
Reed Elsevier, Variety's parent company, sent a cease and desist letter and worked out a settlement with the band, which agreed to change the cover art. The agreement stipulated that band members would have to pay $50,000 plus attorneys fees if the group ever reneged.
Last year, Reed sued the band for breach of contract, claiming the offending image had popped up on the website for the band and its label Kung Fu Records. The band claimed it wasn't behind the breaches.
Defending the matter for the Vandals was Escalante himself, a Loyola Law School alum who worked in business affairs at CBS before pursuing music. He also hosts a radio show called "Barely Legal Radio," which covers entertainment legal matters. Escalante's first task was to get the case transferred from Delaware to the more convenient jurisdiction in Los Angeles. Variety opposed this attempt, claiming the original agreement contained a clause naming Delaware as the forum for litigating disputes arising from the agreement.
Round 1 goes to Escalante.
The judge, exercising discretion, finds that "the interests of justice overwhelmingly favor allowing this case to proceed in the Central District of California" since the vast majority of documents and witnesses are based there.
On the Vandals' website, Escalante is crowing about the win, and since the case will now proceed in California, the band is likely to file an anti-SLAPP lawsuit that will seek to recover legal fees for an abridgment of free speech.
"The Plaintiffs should all be ashamed and it is the Vandals' opinion that [Variety's lawyers] are liable for malpractice damages by ruining their client’s reputation in a frivolous attempt to act like Godzilla when it comes to hoarding their precious font and inhibiting protected free speech," says the band's website.
Variety lawyer Henry Horbaczewski had no comment about the development.
If the band's comments aren't enough of a shot across the bow, it also prepared a heckling video about the dispute, featuring a fake conversation between Variety's former editor Peter Bart and his lawyer. In the video, Bart questions why the publication is spending $100,000 in attorney's fees to win a $50,000 claim at a time when the publication is dwindling in size.
Here's the video: