The Truth In Music Bill was created to protect the artists from Identity theft and to protect the Consumer from being mis-lead to believe they are seeing the legendary artists that made the hits songs famous, when in fact they are not.
The Truth in Music Law is designed to stop unscrupulous concert promoters from deceiving the public with “impostor groups” which have no connection, legal or otherwise, to the authentic groups.Fundamentally, this is a Consumer Protection Bill, as the public pays hard-earned money to see a show and has no idea what it’s even getting.
The bill makes it mandatory for a live performance to include at least one recording member of the group who still has the right to use the group name or Trademark.Otherwise, the act must be billed as a “tribute” or a “salute” so that the public knows what it’s paying for.
An ancillary effect of this bill is to help the authentic artists themselves, who have been struggling for many years to try to stop impostors to no avail. The impostor groups take their jobs, their money, their legacy and their applause.
The bill is necessary because existing law has completely failed to work and impostor groups have multiplied. There may be as many groups of “Coasters” and “Platters” performed nationwide, often at the same time in different venues. The bill shifts the burden to those groups to prove that they actually have rights to the group names.
The specific guidelines the bill provides give clarity to venues as to whom to book, and to the state attorney general’s office as to what constitutes a violation. This is much more efficient and cost-effective than any other way of dealing with this very specialized area.
The Marvelettes saga is over! A “settlement” has been reached which is not exactly a “settlement,” but rather the result of a court opinion that made a trial an academic waste of time and money with a foregone conclusion. This one-sided “settlement” clears the way for Katherine Anderson Schaffner and the Estate of Gladys Horton to register the name “The Marvelettes” on the basis of their superior rights in relation to longtime claimant and impostor group purveyor Larry Marshak. Marshak can now politely call his “product” “A TRIBUTE TO THE MARVELETTES” all in the same size type font, or my favorite, “Larry Marshak’s Tribute to The Marvelettes” in which case “Larry Marshak’s Tribute” has to be at least 75% of the size of “Marvelettes.” There is also some financial consideration involved. The end.
Congratulations to the excellent lawyers at Reed Smith New York who handled this case pro bono, most notably lead litigator Kerren Zinner and her associates Pamela Schoenberg and Andrew Messite. Great thanks also to our longtime friend Darren Cohen who pursued The Marvelettes’ goal at the Patent and Trademark Office for Reed Smith until Marshak filed suit in federal court, and his colleague, the great Steven Getzoff, father of the wondrous musician The-O. It was Steve who first took note of the Truth in Music law when it passed in New York and pressed for Reed Smith to help, pro bono, with the Truth in Music movement. Our gratitude to all at Reed Smith is boundless. And, as always, words can’t express my appreciation for the advice and dedication of my friend and cohort Robert Nathan.
A quick followup to my last e-mail— the long-running show at the Rio Hotel in Las Vegas has been shut down as a result of the preliminary injunction vs. the Larry Marshak “Platters” and continuing woes re his “Marvelettes.” Marshak has appealed the “Platters” decision, but the judge has vast discretion in granting an injunction and in our opinion it’s unlikely she will be overturned. The show could conceivably reopen somewhere, but only with “Tribute” billing, which makes it an entirely different entity. There is at least preliminary reason to celebrate!!!
Simply put, we are winning!
TRUTH IN MUSIC is pleased to announce TWO recent major victories against impostor groups. In the Ninth Circuit, a series of decisions beginning with Reed v. Bennett have finally affirmed that Herb Reed was indeed the rightful owner of The Platters’ mark, as well as “Herb Reed and The Platters” and “Herb Reed’s Platters.” As a result, the Ninth Circuit has begun to enjoin impostor groups using The Platters’ name. Preliminary injunctions have been issued against the Larry Marshak group(s) and the Monroe Powell group. The “Wilson Williams and his Platters’” trademark registration has also been cancelled at the Patent and Trademark Office. The Marshak groups are required to be billed as “Larry Marshak’s Tribute (or Salute) to The Platters” if they wish to perform at all. Watch the show at the Rio Hotel in Las Vegas or this alteration in billing, if in fact this show continues at all. The public will no longer be deceived!
As I’m sure you all know, the great pioneer Herb Reed passed away in early June, but he had the satisfaction of knowing that he had won The Platters’ name and that injunctions against the impostor groups were likely. His corporation, Herb Reed Enterprises, is able to continue his legacy and the legacy of The Platters with the proper quality control that the public deserves. Superb work was done on this caseby Herb Reed’s manager, Fred Balboni, and Herb’s lawyer Eric Sommers, as well as local Nevada counsel John Krieger. We at Truth in Music had always expressed confidence that an earlier unpublished Ninth Circuit opinion could be used to clarify the convoluted history of Platters’ litigation, and in fact that was the case. After more than 50 years of litigation, the Platters’ name has finally and clearly been returned to the person who named the group in 1953, and that is as it should be, in our opinion as well as the Court’s! It should also be noted that Sonny Turner, who replaced Tony Williams as The Platters’ lead singer in 1960, still performs under his own name, Sonny Turner, Former Lead Singer of The Platters, and now has a fair and level playing field on which to market his substantial talents, a playing field no longer littered with phony “Platters” groups deceiving the public as to their legitimacy and undercutting the authentic performers’ fees. We anticipate that the preliminary injunctions described above will become permanent injunctions in due time.
The second significant development occurred in the Second Circuit with regard to The Marvelettes. Judge Denise Cote has opined that the rights of original Marvelettes Katherine Anderson Schaffner and the estate of Gladys Horton are superior to those of Larry Marshak, which should ultimately end Marshak’s decades-old attempt to usurp The Marvelettes’ name. Judge Cote wrote a sentence in her opinion that summarizes a central principle of our Truth in Music movement. She held that “a stranger to the creation of goodwill associated with a mark could not develop common law rights in the mark for live performances where the original owner maintains rights in the mark to market musical recordings.” The Truth in Music movement is all about fighting these “strangers,” outsiders trying to prey on and cash in on famous names whose goodwill they had done nothing to create. Many conflicts in the world of musical groups can be defined as “internal disputes,” and those are a very different matter in which no “strangers” are involved. The Truth in Music Law which we have passed in 34 states is designed to rid the musical landscape of impostor groups, of “strangers,” not to settle internal disputes between parties who may have legitimately contributed to the establishment of the goodwill of that group name. Watch for significant changes likely to come soon in the status of The Marvelettes, as the excellent lawyers at Reed Smith New York, Kerren Zinner, Andrew Messite and Pamela Schoenberg, follow up on Judge Cote’s decision.
As if these two tremendous developments weren’t enough, there have also been some excellent responses recently from venues which had booked what we regard as impostor group shows. Twin River in Rhode Island turned a show into a “tribute” when the venue was not convinced the lineup in question could pass muster under Rhode Island’s Truth in Music Law. Efforts by our great ally, New Jersey Deejay Corky Warren, yielded similar results with regard to a municipal show in Camden, New Jersey. It’s worth noting that Singer Management v. Milgram has now been concluded in favor of the NJ Attorney General’s Office. This Third Circuit opinion upheld the constitutionality of the Truth in Music Law, and the NJ AG’s office is now once again unencumbered in its efforts to enforce this law in response to consumer complaints.
All in all, a remarkable period of progress for Truth in Music. We are succeeding in creating a fair and just environment for musical groups now and forever, in which impostors will be prevented from deceiving the public and the authentic performers will retain the legacy they worked so hard to create.
Jon “Bowzer” Bauman
Chair, Truth in Music Committee
Vocal Group Hall of Fame
Hello, everyone, and thank you for your efforts in the Truth in Music movement. Our bill will soon be law in 33 states, and the federal bill is on the immediate horizon. Our bill is now on the Governor’s desk in both New Hampshire, which could not have been done without Lynda Tocci and Paul Pezzella, which completes the entire northeast, and North Carolina, which recently had what is in our opinion three impostor group shows polluting its concert calendar. Thus the total of 33, this session having also added Utah, Washington, Oregon, and Oklahoma. I’d like to thank Rep. Greg Hughes of Utah, Sen. Karen Keiser of Washington, Sen. Floyd Prozanski of Oregon, Rep. Mike Thompson of Oklahoma, Sen. Jackie Cilley and Rep. Bob Perry of New Hampshire, and Sen. David Weinstein of North Carolina for sponsoring our bill and shepherding its passage. Thanks also to their able aides and other invaluable personnel in these states– especially John Elder in Washington, Val Hoyle and Juliana Greenlaw in Oregon, A.J. Mallory in Oklahoma, Will Craig, Patrick Murphy, Majority Leader Maggie Hassan and Senate President Sylvia Larsen in New Hampshire, and Amy Fulk and Will Quick in North Carolina. Most special thanks to my friend Ty McCartney of Utah, who, along with the beloved Elaine Makas of Maine, is individually responsible for helping us find a record number of sponsors!
Other major news is last week’s opinion of the Third Circuit in Marshak v. Treadwell, which upholds contempt of court judgements against those responsible for many of the impostor Drifters groups, and reverses the District Court in once again requiring an accounting of the profits from their impostor group performances. This will damage these perpetrators of some of the most egregious impostor group scams where it hurts them the most– in the pocketbook! Many of these same players have also been enjoined from misusing the name “The Temptations” and held in contempt of federal court in the Ninth Circuit. Congratulations to Cindy Salvo for her outstanding legal work in Marshak v. Treadwell.
In the midst of this long legal battle, where it’s easy to forget in all the minutiae what brought us here in the first place, I was gratified when Judge Fuentes of the Third Circuit reminded us of the special place of music in our collective consciousness. In the first paragraph of his opinion in Marshak v. Treadwell, Judge Fuentes wrote (of the underlying case):
“Judge Politan enjoined Marshak and his company from marketing The Drifters anywhere – not On Broadway, not Up On the Roof, and not Under the Boardwalk.”
Jon “Bowzer” Bauman
Chair, Truth in Music Committee
Vocal Group Hall of Fame
Here is a long overdue update on the excellent progress of the Truth in Music movement.
Perhaps the biggest news of all is the State of New Jersey’s huge win in the Third Circuit case, Singer Management v. Milgram. Some of the major promoters of what we believe to be impostor groups had sued the New Jersey Attorney General for attempting to enforce the state’s Truth in Music Law. Their main allegation was that the law was unconstitutional. Last week, Judge Dickinson Debevoise granted the State’s motion to have the case dismissed, thereby upholding the constitutionality of Truth in Music and insuring that we will not have to amend our language in any of the states we’ve passed. This also untied the hands of the NJ AG’s office and allowed them to take further action to enforce the law in the future. An upcoming show at the Atlantic City Hilton featuring what we believe to be impostor groups has been abruptly cancelled by either the hotel or the promoters!
There has been a bit of confusion about this court decision, created by a rather poorly researched article in the New Jersey Law Journal. This article completely misinterpreted Judge Debevoise’s opinion and in fact confused the impostor groups with the authentic artists. I’ve even had a couple of people contact me about the “major setback” they heard we had suffered, which was actually a major victory.
To clear up this confusion, I contacted the Editor-In-Chief of the NJ Law Journal, who was ultimately quite apologetic about the Journal’s misinterpretation of the opinion. He invited me to write a Letter To The Editor and promised to print it. It appears in this week’s edition of the New Journal Law Journal, and I reprint it here for all of you:
Respectfully, The Journal article about impostor musical groups, “Suit By Heirs to 1950s Musical Groups Moot as NJ Regulators Change Tune” is misleading from the headline on down. The proper headline would be: “Federal Court Grants NJ AG’s Motion to Dismiss Lawsuit Challenging Truth in Music Statutes.”
This was entirely a win for the “regulators,” for the authentic artists who are inductees of the Vocal Group Hall of Fame, and (especially) for the concert-going public which deserves better than to be duped by impostors. In our opinion, the plaintiffs in this lawsuit have never legally established themselves to be the “Heirs” to any “1950’s Musical Groups” and the Truth in Music Law we have championed in over 30 states is precisely designed to force groups like these, with dubious legal provenance, to put their cards on the table in court and prove their rights. Indeed, the “Elsbeary Hobbs Drifters,”whose claims you repeat and therefore give credence in the longer Law.Com piece, have already been disposed of in two published opinions (see Marshak v. Treadwell (1999, DC NJ) 58F. Supp.2d 551, affd. (2001, 3d Cir.) 240 F.3d 184). What’s more, in 2007, the principals and affiliates of plaintiffs in the current case were found to be in willful contempt of that permanent injunction by the same Judge Debevoise who dismissed the current case!
More thorough research and analysis on your part might have revealed this (as well as the same plaintiffs’ injunction and contempt citation by Judge Feess in the Ninth Circuit with regard to their misuse of the name “The Temptations.”) Judge Debevoise’s assessment in his 2007 contempt opinion was that the plaintiffs were carrying on an “elaborate shell game,” which perhaps continued with the apparently meritless current lawsuit. In any case, the current decision concludes that the Truth in Music Law is constitutional as written, that it is consistent and can co-exist with the Lanham Act, and that this is no longer a Federal issue. The decision dismisses plaintiff’s suit with prejudice, and the AG’s supplemental jurisdiction counterclaim without prejudice, thereby authorizing the Attorney General’s office to proceed with investigation and prosecution of impostor groups under NJ’s Truth in Music Law.
Just to make it a clean sweep, the plaintiffs also lost their concurrent motion for attorneys fees.
Jon “Bowzer” Bauman
Chair, Truth in Music Committee
Vocal Group Hall of Fame
And so, as Singer Management v. Milgram passes into history, our movement goes forward to pass the Truth in Music Law in more states. Now that the constitutionality of the Law has been upheld, we will begin the federal effort as well. This will be a good public relations vehicle to educate the public if nothing else. We’ve always been certain that the most effective enforcement will come at the state, not the federal, level.
Despite the dramatic downturn in the economy and consequent shortness of funds, we have several states in progress in the 2009 legislative session. We have already been signed into law in Utah and Washington and Oklahoma and our current state total is 30!
New Hampshire should be completed soon, and Kansas, Oregon and North Carolina are in progress. Georgia passed one chamber and will complete next year in its two-year session, as will New Mexico and Arkansas. And we are close to sponsorship in Louisiana, which has a very late session that is just beginning. I hope to have passed all 50 states by 2011, 2012 at the latest.
In other enforcement news, we still await the results of an investigation and a projected hearing at the Nevada Consumer Affairs Division with regard to a show at the Sahara Hotel.
This would potentially impact the names “Cornell Gunther’s Coasters”, “The Platters” and “The Marvelettes”. The Governor of the state of Nevada has now called for the dismantling of the Nevada Consumer Affairs Division, which has obviously impacted their investigation.
We have no idea what will happen there, but trust of course that the state of Nevada will ultimately enforce its consumer laws in the proper fashion. Many fans in Nevada are very concerned about the lineage of the groups at the Sahara.
On the whole, it’s clear that the Truth in Music movement has had substantial impact on solving the impostor group problem. Venues and even agents are doing much better due diligence as to whom they hire and promote. Even some of the most hardened and greedy agents are now hawking “Tribute” shows instead of pretending they’re selling the real thing. We estimate that the impostor group business is down about 90% since the beginning of our effort.
Please continue to alert us to any dubious shows that come to your attention, and I promise to keep you updated in a more timely fashion. This volunteer work is a daunting task in a down economy when one is trying to maintain one’s own business, but it’s well worth it!
Also, if you can think of ways to help The Vocal Group Hall of Fame itself with its efforts to annex or relocate, please contact Bob Crosby at Crosby@vocalgroup.org