BY KAREN GWEE
ON NOVEMBER 10, 2016, 11:00AM
Some things are constant in the music industry: good albums, bad albums, feuds, collaborations — and musicians hanging fashion retailers and designers out to dry for ripping them off.
Every other month, maybe, an artist puts some clothing company on blast for appropriating their band name, merch design, or image. It’s happened to aSwedish rapper, a Canadian noise group, and a Barbadian superstar. The worlds of music and fashion often intersect and influence each other, but when suspected intellectual property theft and cultural appropriation rear their heads, there’s no shortage of enmity and friction between these spheres.
In September, Against Me! bandleader Laura Jane Grace sent a terse tweet to British fashion retailer Topshop about one of their products: a studded, leather jacket emblazoned with the name of her band, without their permission.
What Topshop did was “not cool,” Grace tweeted, and judging from their tweets, fans agreed – not just because the name of a band they loved had been used without permission, but also because of the jacket’s breathtaking $700 price tag. Topshop responded swiftly, yanking the jacket from their website and withdrawing it from stores. The number of jackets they’d sold in North America before recalling it? One, a Topshop representative later told me by email. (Against Me! declined to comment for this story.)
On Twitter, some people asked how Grace could lay claim to a phrase, even if it was the name of her band. Grace pointed out that she has trademarked the name “Against Me!”, which she registered in 2010, as a quick search on the United States Patent and Trademark Office’s website shows. (The registration is under the name Thomas J. Gabel, the name Grace went by until 2012.) Besides the obvious goods and services categories of musical recordings and live musical performances, “Against Me!” is also registered to Grace as a trademark for men’s and women’s clothing: t-shirts, tank tops, hats, socks, and more.
So, clear case of trademark infringement? Not quite. Grace’s tweet effectively served as a cease and desist notice, but an actual trademark claim likely wouldn’t stand up too well in a court of law because Topshop wasn’t using the band’s name “in a trademark sense,” says lawyer Howell O’Rear, who has written about music and copyright for Billboard and American Songwriter.
“The name Against Me! was not used to indicate the source or producer of the jacket. Instead, it was part of the design of the jacket, which features many other band names,” he wrote in an email.
Fans often clamor for artists to sue or demand compensation when their favorites get ripped off, but that’s far easier said than done because of the “detailed, and often complicated, legal standards” involved, says O’Rear.
“Just because it looks like a rip-off or plagiarism doesn’t mean the use rises to the level of copyright or trademark infringement … Some rip-offs are legal, and that can be a tough pill to swallow.”
“One of the problems with trademark litigation is that it can get very fact-specific,” says trademark and copyright lawyer Alan Korn.
“Very often, survey evidence is introduced where you hire experts to take surveys of people and show them products like this jacket and ask, ‘Do you believe this jacket was sponsored, manufactured or endorsed by this band?’ And then you have competing experts. It starts to get crazy extensive.”
Joe Escalante, bassist of California punks The Vandals, knows the struggles of prolonged, complicated litigation all too well. In 2004, the band was saddled with a cease and desist letter from the parent company of entertainment trade magazine Variety, whose logo The Vandals had parodied on the cover of their 10th album, Hollywood Potato Chip. The band reached a settlement with the publication, agreeing to change the cover art and to pay $50,000 plus attorney’s fees if the lettering ever re-emerged.
Just when The Vandals thought the case was dead and buried, Variety’s parent company, Reed Elsevier, sued the band six years later, claiming that the original album cover was displayed on the band’s website and the website of their label, Kung Fu Records. The band claimed they weren’t behind these third party images. When Variety wouldn’t back down from its breach of contract lawsuit, Escalante — musician by day, Loyola Law School alum and attorney by night — decided to represent The Vandals. At the time, he called it “the worst thing that’s ever happened to me, and to the band, and the hardest thing I’ve ever done.” Variety eventually dropped the lawsuit in 2012.
So when a fan alerted the band to the exact Topshop jacket, which, besides the phrase “Against Me!” on its sleeve, also had the word “VANDAL” emblazoned across the back, litigation was the last thing on Escalante’s mind.
The stencil had indeed been cribbed from a shirt The Vandals sold in England and Europe, but the band thought it was “hilarious” that someone would mine The Vandals’ “humble, simple punk” ethos for a fashion statement, Escalante said in an interview.
“Someone took that image and said, ‘Hey, that would make a good fashion statement of some kind,’” Escalante said. “‘They don’t wanna take the time to earn their credibility in the streets. What if we just made them a $400 [sic] jacket and they could have credibility overnight?’”
So the band only made a Facebook post, lightly ribbing Topshop and punk aspirants with deep pockets. When Against Me! got the jacket recalled, they were actually a little sad to see it go. This realistic and lighthearted approach was thoroughly informed by their nightmarish legal battles against Variety, Escalante said. Who’d want to take on that kind of futile court struggle over a jacket, especially one that hardly affected The Vandals in the first place?
“If it’s a guy making a t-shirt and selling it out in front of a punk show, then that’s our business. If someone did that, we would probably fight them. This is just craziness. It’s not taking any of our business,” he said. “If there’s anyone on that jacket who has a high-end jacket market these guys are muscling in on, then go get mad. But we don’t.”
Bands should demand compensation from these offending companies, the argument goes, because these retailers are making money off, if not these bands’ very names, the culture and aesthetic these bands are immersed in and have helped to foster. But it could be difficult for bands to determine what kind of damages they’re owed, especially if their consumer bases are so different. It raises the question: Did this $700 pre-studded leather jacket actually divert consumers away from official Against Me! and The Vandals merch?
For artists who have branched out beyond shirts and records, the answer is likely yes. Merchandise has always been a way for bands to make money — the question lies in how much, which then helps dictate the lengths one goes to to protect a brand. Not everyone is like Taylor Swift, who, according toBillboard estimates, raked in $17 per head in merch over six months of domestic touring in 2013. Two years later, she submitted applications to trademark Swiftian phrases like “party like it’s 1989” and “this sick beat,” likely in advance of an extensive merchandising program, Billboard noted.
T-shirts of suspicious provenance have been hawked outside venues and festivals for years, but the internet and the rise of ad hoc seller sites — from Amazon to Etsy — have lit another fire under the phenomenon that is unapproved, unlicensed merchandise, whether sold by big companies or solo operations.
Manhead Merch, a merchandise company whose clients include Fall Out Boy and Sia, even created their own internal software platform to detect infringing merchandise on particular websites, compile a list of relevant hyperlinks, and craft a cease and desist letter in minutes.
“What my internal platform does is take my lawyer out of the mix, so he doesn’t have to sit around compiling cease and desist letters every week,” says Manhead Merch founder Chris Cornell (not to be confused with the Soundgarden frontman). “It makes it a lot more convenient. We’re literally taking down links every couple of days.” Often, sellers remove then re-list unlicensed merchandise, or put up infringing product under a different screen name, a situation that Cornell likens to “whack-a-mole.”
Some offenders aren’t actually aware that the products they’ve put up on sites like Etsy and Redbubble constitute copyright or trademark infringement, Cornell points out. And while one would think big, established retailers would know better, situations like the Against Me! jacket and Rihanna tank top (which cost Topshop millions of dollars in damages) still happen because sometimes retailers just don’t ask questions.
“They’re not asking if it’s official licensed merchandise,” says Lisa Streff, executive vice president of global licensing at branding and marketing company Epic Rights. “They are taking it at face value that a vendor’s coming in there and showing them a licensed t-shirt, and they’re assuming that vendor has the right.”
Unlicensed merchandise is a “growing problem” for the company, says Streff. This isn’t particularly surprising when you consider their roster, which includes juggernauts like Celine Dion, Journey and arguably the most commercialized band on earth, Kiss. “Multiple times during the week we are being notified that one of the artists we represent – their trademarks are being infringed upon,” she says. “Some weeks it’s daily.”
Some manufacturers try to take creative liberties with artists’ iconography, or even resell licensed merchandise that they’ve distressed or embellished, says Streff. Epic Rights has a no-tolerance policy regarding unlicensed merchandise and, amidst issuing take-down notices and seeking royalties, has been talking to some retailers about the issue.
Not all conversations between the infringer and the party infringed upon are so cordial, even when there’s zero talk of litigation. In June, Kim Kardashian caused a mild Internet brouhaha by wearing a spiky leather jacket adorned with punk band patches and a $11,000 price tag. What could have been a passing session of hand-wringing over a big celebrity indulging in subcultural aesthetic, however, turned into something different: a social media spat between the designer who created the jacket and a hardcore punk band.
As Noisey chronicled here, the NYC black metal band Black Anvil argued on Instagram with Henry Levy, founder of luxury fashion label Enfants Riches Déprimés and the man who designed Kardashian’s jacket. This was precipitated by a patch on the jacket that proclaimed “Kill Your Idols,” which many fans perceived as a reference to the legendary New York hardcore punk band of the same name (who broke up in 2007 and remain so despite the occasional reunion show).
Kill Your Idols’ members got plenty of messages on social media about the jacket, but because the patch wasn’t actually a Kill Your Idols logo, it wasn’t a big deal, said lead guitarist Gary Bennett, who now plays guitar in the band Sheer Terror. “Initially, I disregarded this as just the use of the broad term ‘kill your idols,’ which is not something we invented. As you know, it’s the name of a Sonic Youth song, among other things,” he said over email. “But our fans are loyal, and this kind of thing was enough to freak them out.”
Kill Your Idols weren’t fussed, and they certainly weren’t thinking of taking legal action — they’ve never formally trademarked their band name, and as someone whose response to bootlegging is to ask for some swag, “I’d be a hypocrite” to undertake any litigation, said Bennett. They weren’t mad, not until bassist Paul Delaney read something Levy had said in a profile by Complex: “The best way for me to explain the brand is ‘elitist, nihilist couture.’ The price point eliminates the masses, and the ideas eliminate the people who I don’t want, generally, in it, due to the dark nature.” The band took serious issue with Enfants Riches Déprimés’ intentionally exclusive ethos, which Bennett described as “everything punk isn’t supposed to be.”
“It’s enough to exploit punk and hardcore for your ‘high fashion’ or whatever, and just plagiarize designs. It’s another to be all pretentious about it and denounce those of us who cherish the culture we are such a big part of,” he said. “He’s basically saying, ‘Poor, thrift store and Walmart shoppers need not apply,’ and fuck him anyway.”
“The greatest fashion statements were made by poor people living in shitty neighborhoods, and their ideas always find their way into the mainstream … and none of the credit or rewards go to the progenitors,” said Bennett. “The real artist is almost always at the bottom.”
And so Delaney — also the current bassist and singer of Black Anvil — made a post on Instagram calling Enfants Riches Déprimés “wack.” This quickly spun into a small war of words between band and designer: