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Rock Music Posters and The Rock Music Posters and the Law By Nels Jacobson ock bands have used posters to advertise their upcoming performances for about as Rlong as rock and roll has been around. In fact, since at least the 1960s, some of these posters have been considered works of art in their own right, not unlike the 19th century posters of Chéret and Toulouse-Lautrec. Only lately, however, have the legal issues raised by this method of advertis- ing begun to generate much interest. Today’s unprecedented scrutiny has brought an end to the carefree innocence of the halcyon days of poster making. Number 1 • Volume 23 • Spring 2005 • American Bar Association • Entertainment and Sports Lawyer • 1 “Rock Music Posters and the Law” by Nels Jacobson, published in Entertainment and Sports Lawyer, Volume 23, Number 1, Spring 2005 © 2005 by the American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.. While a career as a rock poster artist Collectors are asking as much as three In exchange for a relatively modest may neverhave been particularly lucra- quarters of a million dollars for collec- amount of money and a free pass to the tive, at least until recently it could be tions of numbered sets of Family Dog event, the artist was expected to create artistically fulfilling and it was fairly and Fillmore posters — posters that an original work of art — a poster risk free. But all that has changed. Now artists typically were paid no more than design. The promoter would cover the more than ever before, poster artists, $100 a piece to design. cost of printing the posters. Because bands and concert promoters, among Somewhat ironically, increased atten- most poster designs were created to others, should be mindful of the legal tion to this ink-on-paper art form has advertise specific engagements, the vast rights, possibilities and pitfalls associat- been fueled by digital technology. The majority of posters were distributed ed with rock posters. proliferation of poster images on the before the event they advertised. (One Internet has generated increased interest notable exception is The Fillmore in San in the physical posters themselves. Also, Francisco where, at those shows for computer-design programs such as which a poster is created, each audience Photoshop, Quark, Illustrator and member is given one on the night of the Painter have made it easier for neo- show as they leave.) phytes to try their hand at designing If there were posters left over after posters themselves. It is not uncommon the event, they were usually in the pos- for posters designed on computers and session of the promoter, who sometimes offered in signed and numbered limited would sell them. In cases of particularly editions by today’s most popular rock popular and sought-after designs, a artists to fetch almost as much as vin- promoter might reprint them specifical- tage posters from the ’60s. ly for sale. It’s been said that at one That posters can command such point the Family Dog operation was prices is understandable: Some rock financed almost entirely by poster rev- posters are almost 40 years old; some enue. Popular posters also were boot- have become cultural icons; some were legged by unscrupulous profiteers and created to promote appearances by there are stories of printers keeping now-deceased performers at long-gone secret stashes of the posters they print- legendary venues; and some are simply ed. Well-heeled dealers acquired large beautiful or fascinating to look at. stocks of posters by legitimate or some- The question is, who has a right to times questionable means. Dealing in control the creation and sale of these posters became a viable business. posters? Not posters that are clearly Sometimes the artist was allowed a Poster created by the author to adver- improper works — bootlegged, coun- few courtesy copies of a poster he or tise a benefit concert for 13th Floor terfeit or pirated posters, unauthorized she designed, which the artist usually Elevators’ lead singer Roky Erickson. copies of authorized designs, posters gave away to friends and family or sold Jagmo © 1992 Nels Jacobson. created for fictitious performances or for next to nothing long before they The recent increase in attention paid designed after-the-fact for performances appreciated in value. Eventually, some to these posters and related trademark, that happened but for which a different artists began to accept additional copies copyright, right of publicity and con- poster or no poster at all was created. of their posters as partial payment for tract rights, can be attributed to a couple But legitimate posters that were actually their design services with the hope that factors. First of all, there is a thriving commissioned to promote a scheduled they could recoup some of their costs market for rock posters today. Among performance — original works author- and the value of their time by selling the most popular poster series are those ized by the band, the performance loca- them for more money somewhere created in San Francisco in the ’60s for tion or promoter. down the line. Bill Graham’s Fillmore locations and for For many years, the system generally A number of years ago, an alterna- the Family Dog dances organized by worked as follows: A local concert pro- tive to the promoter-commissioning- Chet Helms, those created for the moter or club owner would book a the-artist paradigm emerged. Some Armadillo World Headquarters in band and then hire an artist to create a artists began approaching promoters Austin, Texas, during the ’70s and those poster to advertise the show. Often the and offering to supply posters for a created for Detroit’s Grande Ballroom. band would provide photographs or show at no cost. The artists offered to Some of the individual posters dis- logos to the promoter who in turn design the posters, pay for the printing tributed for free during the psychedelic would give them to the artist to aid in and provide a certain number of posters ’60s — posters promoting shows by creation of the poster. There may have to the promoters and bands in exchange Janis, Jimi, the Jefferson Airplane and been a written live personal appearance for permission to sell the remaining the 13th Floor Elevators, for instance — agreement between the band and the posters — which could be as few as a sell today for thousands of dollars. promoter regarding the show but only handful or as many as several hundred. in rare cases was there a written agree- As long as the posters weren’t sold ment between the artist and the before the show or in or around the site promoter or the band. on the night of the show, this arrange- Number 1 • Volume 23 • Spring 2005 • American Bar Association • Entertainment and Sports Lawyer • 2 “Rock Music Posters and the Law” by Nels Jacobson, published in Entertainment and Sports Lawyer, Volume 23, Number 1, Spring 2005 © 2005 by the American Bar Association. Reproduced by permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.. ment was apparently acceptable to most Trademark year, posters advertised the event and bands and quite attractive to promoters. Posters advertising performances by its accompanying band performances. Another variation of this scenario musicians generally include trade- At the event itself, between perennial was where enterprising poster dealers marks. At a minimum, the name of the highlights such as the Spam Olympics would act as brokers between the artists musician or bands performing and the and the Spam Cook-Off (featuring dar- and the promoters and bands. By spe- name of the club will appear on a ing flights of culinary fancy and cial arrangement with the locations and poster, for obvious reasons. To the tempting concoctions such as the bands, the prominent poster store extent that these are trademarks, their Spam Daiquiri), revelers giddy on ArtRock, for example, often hired artists use should be authorized only by the alcohol and pork products purchased to create designs for signed and num- trademark owners. If the poster was T-shirts featuring Spamorama poster bered promotional prints that it would commissioned by the band and the designs. sell for years after the advertised events. club, use of these marks may be reason- Eventually and somewhat pre- Whatever the exact details sur- ably understood to have been author- dictably, the organizer of this event rounding the creation of any particular ized. and one of the poster artists he’d hired poster, generally the arrangement Presumably, a poster that brings an — in this case Jim Franklin — between the poster artist and the pro- audience to a concert benefits both the received cease and desist letters from moter or performer has been a very band and the club and that is why they Hormel Foods, the makers of Spam loose one for 40 years. Until recently, it commissioned it in the first place; a luncheon meat and owners of the was unusual for there to be any dis- poster would be considerably less effec- Spam trademark. Hormel apparently cussion at all of intellectual property tive without the name of the band per- took particular exception to a poster rights. Today, it remains that way for forming or the location of the perform- design depicting a squashed can of the most part.
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