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The pioneers of rock and hip-hop are having a bit of a moment in courtrooms across the nation. Led Zeppelin is set to stand trial next week over “Stairway to Heaven” while Flo & Eddie of the Turtles are leading putative class actions over the broadcasting of their music on platforms like SiriusXM and Pandora. Now, with HBO reviving the early ‘70s music industry for the series Vinyl, DJ Kool Herc is agitating for some respect.
One of the pioneers of hip-hop, the New Yorker born Clive Campbell has filed a lawsuit against HBO over the use of his identity, name and voice in the show produced by Martin Scorsese, Mick Jagger and others. In one of the episodes in its premiere season, the show’s main character visits the Bronx and is captivated by DJ Kool Herc scratching and mixing records.
For this, DJ Kool Herc claims a violation of a New York civil rights law guarding against likeness misappropriation as well as his common law trademark rights. (Read the complaint here.)
“It’s beyond us why HBO and the producers of Vinyl, a successful show about artists and music, would hurt an artist like Herc who has contributed so much to the music industry,” says Taso Pardalis, the attorney representing the hip-hop progenitor.
A spokesperson for HBO responds, “We are confident there is no validity to the claims.”
HBO has good reason to feel confidence in defeating a lawsuit that demands an unspecified damages amount. New York’s likeness law is a fairly limited one that pertains to uses in advertising and trade. In times that it’s been tested — like when a guy named Michael Constanza sued over Seinfeld, like when Lindsay Lohan sued over a Pitbull song that mentioned her, or like when an artist with a telephoto lens spied on his neighbor — judges have generally elected to protect creative works. Of course, there’s always slight openings as evidenced by Lohan’s focus on how Grand Theft Auto V was advertised. A judge recently let that one move forward.
The trademark claim raises a different issue, and probably a strong defense there too, but putting that aside, the most revealing aspect of DJ Kool Herc’s lawsuit may be the lengths that producers were willing to go to either engender goodwill or avoid nuisance from ‘70s musicians who would be presented in Vinyl. According to the complaint, DJ Kool Herc was presented with a $10,000 offer and consulting contract before the show aired to waive all rights. Whether or not this was a smart move can be debated. In this instance, it appears to have alerted the plaintiff to potential claims. DJ Kool Herc obviously felt he deserved more.
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