The other Jersey boys: Glenn & Jerry, 1978. Photo by Ken Caiafa.
If you think the legal skull-banging between Glenn Danzig and Jerry Only ended in August of 2014 when Judge Gary Klausner threw out Danzig’s lawsuit against Only for breach of contract, think again. Danzig amended his complaint and the case over who owns the logos and trademarks pertaining to the Misfits drags on; opening briefs related to Danzig’s most recent appeal of a summary judgment Only won in April 2015 are being filed this month.
And yet, in an incredible shock, this entire affair was nearly settled over the winter holiday of 2014 by having Danzig rejoin the Misfits. That December, Danzig’s attorney suggested his client (who dissolved the group in 1983 after a six year run) and the defendant (who reformed the Misfits without Danzig in 1995) agree to a certain amount of reunion concerts, split the profits, split all future revenue from the disputed trademarks, and consider entering a new licensing agreement together with a major merchandiser. Only was receptive, so negotiations began for the first Misfits shows with Danzig in thirty years.
A proposed 60/40 reunion profit split in Danzig’s favor was leveled to 50/50. A ten date concert tour shrank down to six—but “at least one” reunion album was added. All other participating Misfits, no matter what their stature, were to be treated as “paid employees.” In response to Only’s demand for built-in protections to ensure Danzig would actually follow through with these gigs, Danzig’s attorney wrote, “I really don’t think this will be an issue as Danzig wants to do the reunion shows” (a $250k penalty was put in place should either party fail to complete the reunion obligations).
Initially Danzig envisioned the reunion happening in 2017 to commemorate the 40th anniversary of the Misfits. Only wanted it “as soon as practicable.” Only also wasn’t fond of billing these performances as “the Original Misfits” (though no alternate name was suggested). The real breakdown, however, was over the same trademark issues that instigated Danzig’s lawsuit in the first place. Confusion as well as contention remained over who owned what and who was entitled to how much of any given piece of Misfits imagery. Specifics failed to be clarified, certain copyrights could not be identified, documents proving anything conclusively could not be produced.
The two sides went back and forth until February 10, 2015, when Danzig’s attorney ended an e-mail by saying, “it appears we are going to try this case.”
Dovetailing with that was some rigamarole over depositions each party was to give that month. Danzig felt he wasn’t given enough time to prepare for his scheduled deposition so he bailed at the last minute; meanwhile, Only and his co-defendant, Misfits manager John Cafiero, refused to commit to any deposition date or agreement. On April 15, the defendants were awarded their summary judgment because Danzig had provided no evidence of the pre-existing business relations that Only is alleged to have sabotaged with his fraudulent ownership and representation of Misfits trademarks. Danzig also could not prove “lost economic advantage” from Only’s activities, nor could he outline “triable facts” concerning Only misrepresenting the famed Misfits skull logo (a.k.a. the Fiend Skull, a.k.a. the Crimson Ghost).
The information above is sourced from a forest of court documents that are available to anyone via Pacer.gov and probably a few other less bullshitty legal repositories (Bortz Law first posted excerpts from said documents on their blog in October 2015; for whatever reason, Bortz’s post didn’t reach fiends until very recently). The case is Glenn Danzig v. Gerald Caiafa et al in the California Central District and at this point it could be a book unto itself. There’s a great subplot that debates whether or not Danzig performing a Misfits song in any context constitutes a performance by the Misfits.
If I hadn’t seen it all in PDF form myself I wouldn’t believe it. The American judicial system almost returned to us the Original Recipe Misfits. Concerts are one thing, but I can’t stop thinking about the reunion album. What in the hell would that be like? What could they call it? Settlement A.D.?
Parties Agree Not To Disparage Each Other Publicly, that would be a good title. It’s my favorite of all the terms they reached for this proposed reunion.
Jerry Only in 1979. Photo by John Rynski.
“Danzig’s lawsuit can only be described as a sour grapes tantrum based on outrageous allegations, the majority of which are completely false,” Jerry Only announced yesterday in a statement to Alternative Press, continuing to say the accusations of breach of contract and trademark infringement brought forth by his estranged band mate are “ill conceived and grossly misguided and will be proven false in court.” Let’s start making bets on whether or not Only will show up for the trial with his devilock.
Jerry’s statement also claims Danzig’s lawsuit is packed with “falsehoods” and that the whole thing is born from the fact “[his] own product line doesn’t sell as well as he might like.” My favorite part is where Only refers to Glenn Danzig as “former co-founder” of the Misfits. Maybe this is semantics, but you can’t quit having founded something. You can quit being a member, which Danzig did, but creating something isn’t an ongoing process you can walk away from. If you shoot somebody, you can’t say, “Oh no, I formerly shot that guy. I’m not a part of that anymore.” You did it, that’s part of your life and everybody else’s.
A more important point: Jerry Only says he is “under no obligation, legal, contractual or otherwise, to obtain consent, or approvals of any kind, from former member Glenn Danzig in connection with their use of the Misfits name or logos.” This is true, technically, simply because Only registered himself as sole owner of almost all of the pre-existing Misfits marks circa 2000, ignoring the mid-’90s agreement between band members that said they share ownership of said marks. Forgive the U.S. Patent Office for not being terribly familiar with the ongoing saga of punk rock’s most ghoulish.
Maybe there wouldn’t be an issue with Danzig or other original Misfits if Jerry was mainly licensing images from the non-classic version of the band he’s been performing with since Clinton was in office; one look at the official Misfits.com store, however, and you can see that isn’t the case. The front page is laden with accessories boasting Danzig era artwork, including the classic stencil of the Crimson Ghost and the ’80s Fiend Club logo (there’s even a section of t-shirts on the site labeled “vintage series”—all with images created before 1994).
Excuse me for stating the obvious, but it will be very interesting to see how this all plays out and/or what facts further legal action uncovers. One would assume Jerry worked out some deal to use the pre-existing marks on the handful of Misfits albums he made in the late ’90s before getting his name on the logos in 2000. What’s Danzig’s story with that? There has always been an enormous amount of confusion over who owns what in this band, particularly in regard to the artwork. With any luck this case will actually go to trial and we’ll see the clearest picture possible of the imagery lineage.
Also worth noting: Glenn Danzig is not exactly an angel when it comes to business or his business relationships. You don’t have to go very far to find proof of that. He may have told Jerry one thing about these trademarks and decided he had another opinion later. As I’ve stressed since the publication of This Music Leaves Stains: yes, I have my own biases and opinions when it comes to the Misfits, but I try hard to look at all this stuff objectively, and as in any other matter I hope the truly wronged find their justice.
Meanwhile, Black Flag managed to settle all their legal issues, because summer’s coming and they don’t want to harsh that beach mellow. We really wouldn’t want any of those guys to have a [puts on sunglasses] nervous breakdown.
[cue Roger Daltrey scream]
On Earth as it is in court: Only and Danzig in happier(?) times.
The brand new Misfits legal horror business: founding singer Glenn Danzig has filed suit against bassist Jerry Only for breach of contract, claiming Only violated a 1994 legal agreement by trademarking various band logos and images in his own name in the year 2000. Danzig is seeking $75,000, but is also asking the court to figure out how much Caiafa might owe him as a result of lost or blocked licensing deals.
This action comes just five years after ex-Misfits Bobby Steele and Arthur Googy sued Only over the exact same thing. That case fell apart after key evidence on the plaintiffs’ side went missing (according to Steele, his ex-wife purposely destroyed said evidence during their very acrimonious breakup).
Both suits cite the same facts: during the second half of 2000, Jerry Only filed applications with the United States Patent and Trademark Office to trademark various Misfits logos—including the Famous Monsters version of the Misfits logo and a version of the Crimson Ghost mascot (referred to in the legal papers as the “Fiend Skull”)—in his offstage name of Gerald Caiafa and did so without notifying other band members. The applications were all approved by 2003; Only then began licensing these logos to retailers. This violated a 1994/5 contract in which splintered Misfits factions agreed to share ownership of the band’s name as well as pre-existing trademarks, logos, and artwork. The Misfits were also bound not to use “names, likenesses and visual representations” of each other without written consent.
That contract, of course, was one of the end results of Only suing Danzig in 1992 over various copyrights and unpaid royalties. Another result: Danzig, who broke up the band in 1983, allowing Only the performance rights to the Misfits. Only has had some version of the band going ever since; in this new lawsuit, Danzig calls Jerry’s Misfits an “imitation,” asserting the “vast majority of…Misfits fans associate the [trademarks in question]” with his original stint, wherein Danzig was known as the band’s “creative heart.” The singer also suggests Only’s “primary qualification” for replacing original bassist Diane DiPiazza in February of 1977 is that “he had recently received a bass guitar for Christmas.”
Danzig apparently became aware of Only’s trademark moves around 2005; that’s when the singer first began filing cancellation/opposition proceedings with the U.S. PTO. Danzig last filed an opposition in 2008. Meanwhile, Only hasn’t let up in his quest to put the Misfits logos on every available surface. This would be fine and dandy, allegedly, if he had cleared it all with Danzig, and if he hadn’t bullied stores into not working with Danzig. To wit:
Caiafa has prevented and continues to prevent other retailers, including Hot Topic, which is the largest retailer of the Misfits products, from entering into licenses with Danzig and/or his designee to merchandise products…by falsely instructing the merchandisers that he is the exclusive owner of the marks, and that, if they enter into a license agreement with Danzig to exploit the marks, they must pay Caiafa a license fee and/or a significant monetary penalty…Caiafa’s misrepresentations have proximately caused injury to Danzig by causing merchandisers not to do business with him, and have deceived consumers as to the source of merchandise bearing the marks…Had Caiafa not interfered with Danzig’s ability to exploit the marks, Danzig or his designee would have entered into lucrative agreements to license the marks…”
Danzig (or rather, his lawyer) goes on to call Only’s behavior “despicable” and notes that he’s been “subjected to cruel and unjust hardship in conscious disregard of his rights.”
The most recent action in this case is the April 29 waiver of service of summons from Jerry Only’s attorney, which just means Danzig’s lawyer doesn’t have to send someone to New Jersey or Chicago or where ever Only lives now to serve the guy with papers.
Interesting bit with the “Fiend Skull.” Perhaps Danzig fears the wrath of Paramount Pictures, who currently own the original Crimson Ghost film serial from which the Misfits appropriated that logo. Someone at Paramount knows what they’re sitting on there: when I inquired about using a still from The Crimson Ghost in my book they asked for what amounts to half a year’s rent.
More on this story as it develops…or, maybe in this case, decomposes. Below: the first page of DANZIG v. CAIAFA, all of which I have read. Yes, there is reference to Kryst the Conqueror.
A: There ain’t much to say. A legal dance was inevitable the minute these dueling reunion factions rose up. I’m sure Greg Ginn truly believes he owns the exclusive rights to the word “flag.” I’m sure Keith Morris et al purposely named their reunion thing FLAG just to drive needles into Greg Ginn. I’m sure everyone involved realizes the Black Flag of 1981 would settle all this with a fistfight in a 7-11 parking lot. I’m sure the Ramones should have taught a correspondence course before they died called “How To Be In A Band With People You Hate And Make Money And Also Hang On To That Money Because This Shit Called Illegal Downloading Is Coming And VH-1 Is Eventually Gonna Run Out Of Specials To Put You On.”
Was gonna put a BF logo parody here, but this image is more apropos.
The following quotes are taken from recent Punknews.org interviews with singer Jello Biafra (second from right) and bassist Klaus Flouride (far left) concerning the band they used to share and are presented “oral history” style, because additional commentary is sort of unnecessary (or maybe because I just can’t bring myself to dwell on this acrimony anymore).
KLAUS: We’d recently been invited by a premiere festival that has in past years reunited bands ranging from Sex Pistols to Portishead to perform with the original [Dead Kennedys] line-up. We put forth the offer (through our manager to Jello’s lawyer—the only route), the proposition to which we were flatly refused…we have to think, he plays Dead Kennedys songs, we play Dead Kennedys songs as we both have the right and desire to, so why the hell can’t we figure out how to let our agendas go and perhaps play them together again?
JELLO: I’m still as proud as I’ve ever been of Dead Kennedys’ music and our legacy and all the cool shit we did together but I’m just embarrassed to know those guys now.
KLAUS: The reason Biafra will only talk to us through lawyers could be that he’s too embarrassed to admit he skimmed $76,000 from his fellow band mates and then lied to us about it. That’s what he did to [guitarist East Bay] Ray, [drummer] D.H. [Peligro], and myself, and that’s what he was found guilty of in the trial.
JELLO: They sued the shit out of me to walk away with everything and abuse it anyway they want. Sure, there was an accounting error on [our record label] Alternative Tentacles’ part, for which I am very sorry and for which we paid them in full dating back to something like 15 years before they sued.
KLAUS: In the early days after the trial, when we found ourselves offered tours and dates to play, I personally contacted Jello and invited him to put the past in the past and to come along with us to which he flatly refused in the form of a fax letter. Since then we’ve again offered an olive branch and invited him to sing on subsequent tours only to be told by his lawyers to not contact him directly, but to make all communications through his lawyer.
JELLO: I’m not a big fan of reunion[s] but when I saw the Stooges it was not lost on me how much it would mean to people to see the real Dead Kennedys line-up back together…but for that everybody has to be willing to get along and treat the other people with respect and they have no intention of doing that…in their hearts [the other Dead Kennedys have] become Republicans and I just wouldn’t do something like that unless we can bring back the real thing.
KLAUS: That’s kinda a crazy inflammatory comment and he knows it. What do you think? And so you can’t claim that as a non-answer answer I’ll be serious for you and state flatly, no we aren’t [Republicans], and it is sort of sad that one would even ask that question in response to yet another flagrant “Big Lie” kind of statement.
JELLO: In a way getting me back into the band would be their worst nightmare, [because I’d] make them rehearse.