Lessons From Misfits & Black Flag
Originally posted on August 17, 2014
I never listened to the Misfits in high school, but I knew who they were because everyone made sure I did by wearing the tee shirt with the Fiend Skull on it. I associated them with the classic rock tee shirts since they were all so ubiquitous, even though those were so clearly brown and the Misfits weren't. I didn't start listening to them til about 6 months ago, just because I had so much unnecessary resentment towards them, secretly knowing I would probably love them but never wanted to cave in. After the first song played, I understood. I understood who the misfits were and why people loved them. My resentment melted away, but I still feel it whenever I walk into a Forever 21 or when I walk down the street, simply because I still couldn't understand why they got so popular in the first place. Until last week.
Last week, the result of the lawsuit between Glenn Danzig (Glenn Anzalone), the founder of the Misfits, and Jerry Only, the bassist for the Misfits (and later vocalist) regarding all of the shitty Misfits merchandise was covered by a fair amount of music blogs. I've gotten really into it because a. it's the misfits and b. I've been reading up on copyright and trademark, just to catch up on the business side of things when it comes to design and freelancing. The summary of the situation is even a bit of a mess: Glenn Danzig sues Jerry Only over breach of a contract they made in 1994, where both Anzalone and Only were granted equal ownership and non-exclusive rights over the Misfits name and logo (1). Anzalone claimed Only secretly trademarked the logo behind his back, when they both had equal ownership, and licensed the logo out to retailers without sharing any of the profits with Anzalone, even though he created the logo (2). Then, Only countersues. Anzalone looses, because he doesn't really have any proof to hold up in court, and continues to not receive any of the profit from that sick hot topic deal (3). Meh.
It's hard to sympathize with the most marketed band ever, who are just fighting over the profits of something which was gone so long ago, something that they keep trying to pump life into. But as long as people are buying it, they will keep selling it. It feels like something between society6 where they will slap their logo on anything and those cheesy money machines where you're just trying to grab as much money possible, but the wind keeps blowing it away from you. Neither of them really pay you what you think you deserve, yet they both scream desperation while just making you feel sad.
While the designer in me feels the need to empathize, I'm trying to picture the band just starting to form in their garage, surrounded by beer cans, used amps and cheap guitars talking about who is going to own the right to the image, and I'm trying not to laugh. But it's serious. It's hard enough for designers to be in control of their own images they produce, and I imagine it's even more difficult to think about sharing your b/r/and and taking it seriously when members will most likely come and go and you don't know who's going to be the biggest dick. Why get into the boring business details like trademark and licensing when there is so much uncertainty? Business isn't punk…and thinking about money sucks, but we need them both.
After reading all about the Misfits, I was like, hey, didn't something like this just happen? Yes, it did (kind of). Both situations deal with famous punk bands, trademarks and merchandise. Greg Ginn, the founder of Black Flag, made trademark infringement claims against cover band, Flag, along with Henry Rollins for selling merchandise similar to the Black Flag imagery, stating it ultimately caused confusion among fans (a totally legitimate claim). Even though Henry Rollins, the front man of Black Flag til 1986, wasn't part of Flag, Ginn claimed all of them illegally tried to register the Trademark (4). Some originally thought the lawsuit was an issue regarding copyright, because most of the members branched off formed Flag (Morris, Dukowski and Stevenson + Egerton of the Descendents), and were making a profit off of Black Flag songs. But it was mostly an issue regarding Trademark since Flag was a cover band. Yadda yadda yadda. Black Flag is Black Flag, Flag is Flag and black rectangles get to be black rectangles cuz they're ubiquitous. Turns out the merchandise was different enough (four aligned rectangles + band names vs four misaligned rectangles) and did not cause confusion among fans. Also, Ginn didn't have any special rights that he thought he had (even after that stunt he pulled trying to prove he's been using the black flag logo all along to maintain the trademark) and that the Black Flag assets were based of a statutory partnership (4,5). Whew again. But where is Ginns brother, Raymond Pettibon in all of this? He made the famous Black Flag logo and he wasn't really mentioned. Which is totally fine because he's too cool for this shit.
L E S S O N S
Although thinking about business sucks, sometimes it just takes a few iconic punk bands getting into stupid fights publicly to make you realize it's cool to have your shit together. So, some terms have been thrown around both cases that have really been burned into my brain for future design freelance business-y things…because I don't think I'll be in a punk band anytime soon.
1. Trademark - Can either be a word, design, slogan and any combination of the sort and can prevent anyone from using a similar mark, therefore protects ones identity. One of the main differences between a registered trademark and a non-registered is that it will protect the exclusive rights throughout the US as well as outside the US...so when someone gets real famous nobody else will steal their design/word or "brand". Also, fortunately enough, a trademark doesn't need to be registered in order to sue for any type of infringement so you can save your $$$, but it will definitely help you for when you get all famous.
2. Copyright - Unlike trademark that helps protect the word/design/slogan, a copyright protects each individual work produced. Today, everything a person creates is copyrighted from the moment it is made so the creator is automatically given authorship. Our current copyright law was established in 1978 and it protects the life of the work by the author throughout their life +70 years. The law seems like such a long time when our generation likes to combine the old with the new, but one great part about it is that everything is always automatically copyrighted now, whereas it previously wouldn't be protected unless they paid to register their images (so use those). Copyright wasn't an issue with the lawsuits between the Misfits or Black flag, but it is good to know the difference between the two. It's also a wake up call to register your images with the U.S Copyright Office (USCO) so they can always be connected with your name, and when someone steals your work, you will have the proof the image is yours and will have a better chance of shutting it down. You have to pay to do this, but you can do it in batches here.
3. Contract - There are a bunch of different types of contracts that exist, and I'm not going to pretend like I know all about them, but as far as I know, there are a few basic things covered in all contracts. These all include copyright use, payment, legal issues, and working relationship issues.
4. Exclusive rights - Only the client has the right to a specified work and the artist/creator cannot sell that same work to anyone else for the agreed amount of time listed in the contract.
5. Non-Exclusive rights - Unlike exclusive rights, the artist/has more control over their use of images and are not limited to one licensing deal. With the non-exclusive rights, the creator can sell that same work to someone else. It is common for contracts to have a combination of the two exclusive agreements, where it will be exclusive for a set period of time, then will become non-exclusive and can be reused.
6. Licensing - The right to sell or rent artwork for a specific use and period of time, rather than sign all the rights away for good. Licensing allows the artist/creator to stay in control of the work they produce.
One of the key things both bands dropped the ball on, was watching over and maintaining their trademark. Glenn Danzig (Anzalone) had the power to see the same profit Only made (non-exclusive), but didn't. Instead, he lost control of it and embarrassed himself by creating a pointless lawsuit out of it, when Only has the complete right to license out the logo to whoever he wants, without giving Anzalone any of the profit. And Gregg Gin didn't really drop the ball the way Anzalone did, instead he seemed to take an even more whiney approach, for it seems as though the lawsuit was formed out of desperation and jealousy (but he did have a point of possible confusion). Turns out, people sue for all sorts of stupid reasons, so it's best to learn from others mistakes and stay in control and read tha damn contract!!
Definitions summarized from Graphic Artists Guild Handbook - Pricing & Ethical Guidelines