The Misfits Almost Settled Their Latest Lawsuit With A Reunion
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 Moves For Dismissal Of Danzig Trademark Lawsuit
The warring parties of Only and Danzig in 1983. Photo by Bill Daniel.
You bet your life there’s gonna be a fight: Misfits bassist Jerry Only and his lawyers have moved to dismiss the lawsuit Misfits founder Glenn Danzig brought against Only in May for trademark infringement and breach of contract, claiming Danzig has no evidence to back his myriad allegations and also that the singer waited too long to make this legal move.
“By his own insistence, Danzig has had no association with the Misfits since at the latest 1994,” Only’s filing state, going on to make the accusation that the singer is attempting to “unfairly profit” from “belatedly recogniz[ing] the [Misfits’] value” (Danzig is seeking $75,000 in damages from profits lost due to Only’s activities). The term “naked money grab” is also used at one point, which conjures up quite the image if you’re not expecting it in relation to Glenn Danzig.
Danzig’s original suit alleges that in the early 2000s Jerry Only fraudulently put his name on various Misfits logos/trademarks that, per a previous legal settlement, were supposed to be co-owned by band members. Only now claims that original settlement did in fact grant him full use of those logos and trademarks, and that even if they hadn’t, Danzig waited too long to do anything about. The statute of limitations in a situation like this is six years; Danzig had patent objections pending against Only for “nearly ten years” with no conclusion, and his lawsuit comes “approximately fourteen [years]” after the disputed breaches of contract.
Danzig concedes that by 2005 he even had actual knowledge of the underlying facts to exercise his purported rights…yet chose to wait nine more years before bringing his claim.”
This could play into Only’s other serious counter: that Danzig can offer no concrete evidence Jerry’s merchandising activities have cost him business. Indeed, there is no specific example cited in Danzig’s claim of a licensing deal gone south thanks to Jerry Only’s interference.
Touching on the aforementioned legal settlement, a.k.a. the 1994 Misfits Agreement: it states that “the parties shall be co-owners of the name and trademarks of the Misfits and all logo(s) and artwork…previously associated therewithin.” However, Jerry now argues that in “renouncing” the band at that time Danzig also renounced his claims to these logos and trademarks. Although there is no specific language in the ’94 Agreement that covers the contingent of a Misfit abandoning his rights, the “Merch” section ends by saying “the plaintiffs and Danzig will each retain 100% of what each earns from the exploitation of merchandising rights and neither [party] has any obligation to account to the other for revenue derived…”
That sounds like it might be tough to beat. Do note the entire merch outline in the ’94 Agreement is but a paragraph long. It would seem Danzig (at that time the defendant) had little idea as to the exact windfalls of cash the Misfits logos would yield in the following decade—thanks, mostly, to his letting Jerry get out there and reform the band without him.
Not everything with Jerry is rock solid here, though. The bassist’s legals throw out a few sentences that are sure to rub longtime fans as dubious at best. To wit: the part about the Crimson Ghost (a.k.a. “the Fiend Skull”) being “uniquely developed by and identified with” Jerry’s ’90s version of the band, a logo he’s claiming “the 1977-1983 incarnation of the Misfits never used as a trademark.”
If he’s referring to the weird 3-D Crimson Ghost that popped up around 1997, sure, that’s undoubtedly a “NewFits” logo, but there is no staggering difference between that emblem and the “Fiend Skull” that appeared on the front of the 1979 “Horror Business” single and the back of the 1980 Beware EP and on the back of 1981’s Walk Among Us album and all over the Misfits’ amplifiers and wrist bands and guitar straps circa ’82.
[Never mind the fact that every “Fiend Skull” in Misfits history is a shallow derivative of something “uniquely developed” by Republic Pictures for a 1940s film serial.]
Even stranger: Jerry’s motion literally says that what is even worse than Danzig making all these claims is the fact the singer filed his papers in California. “[Danzig] seeks to drag [me] 3,000 miles across the country to defend against his deficient claims.” Methinks the $75k Danzig seeks in damages is more crippling than a plane ticket, but who knows, maybe Jerry’s got some paranoia about earthquakes.
Two other bits of interest:
– Jerry Only boasts that he and his company Cyclopian Music “have developed the Misfits into an iconic lifestyle brand”; that translates to “we got the Misfits logo on shoelaces”
– “it is legally irrelevant with what person or entity, if any, consumers associate a mark and, more precisely, this cannot constitute the likelihood of consumer confusion”; Jerry’s missing the point here in the sense that Misfits fans aren’t worried with marketplace overlap, they just want to make sure they’re giving their money to the Misfit they agree most with artistically (even if Danzig is found guilty of framing Jerry for everything in the past three decades there will still be a loyal army of spenders who live to dump their paychecks into his wallet because of How The Gods Kill)
Said it before, saying it again: justice should prevail in this war. May the guilty be punished and the innocent spared. Also, maybe one side or the other could think about putting Googy on a t-shirt? Need to show my pride.
Glenn Danzig Sues Jerry Only For Trademark Infringement In Latest Misfits Lawsuit
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.