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. ance. It is generally not advisable, how- Spam above the caption “Paté Passé?” Yet things are changing. Many ever, to include other trademarks, To prove trademark infringement, bands have become more aggressive unless of course the trademark owners of course, Hormel would have needed about controlling their trademarks and are sponsors of the event, in which case to show that use of its mark in connec- the look of the advertising used to pro- they would likely not only authorize tion with Spamorama was likely to mote their shows. Some bands have but insist on use of their marks. cause consumer confusion. If the begun to view posters more as mer- Spamorama use was defended as a chandise than advertising and have parody, a court would have factored begun to try to capture any revenue the parody angle into its likelihood-of- generated by their sale. In some cases, confusion analysis. bands and concert halls have begun to Parody aside, the organizer of insist on work-for-hire agreements Spamorama also might have raised the with their poster artists. doctrine of nominative fair use as a All of these changes have brought defense. As articulated in New Kids on an increased level of complexity and the Block v. News America Publishing potential risk to the poster artist’s Inc., unauthorized use of a trademark humble calling. In light of the increas- may be a noninfringing nominative ing value of rock posters and the way fair use if it meets a three-part test: (1) the business has been steadily evolv- the product in question must be one ing, it behooves conscientious artists, not readily identifiable without use of as well as concert promoters, bands, the trademark; (2) only as much of the dealers, collectors and third-party mark may be used as is reasonably assignees of the rights in posters, to be necessary to identify the product; and aware of the legal issues and compet- (3) the use must do nothing that ing interests involved. For discussion would, in conjunction with the mark, purposes, those issues and interests suggest sponsorship or endorsement may be separated into two broad cate- by the trademark owner. 971 F.2d 302, gories: (1) ownership of preexisting 308 (9th Cir. 1992). elements of the poster; and (2) owner- The Spamorama use may have met ship of the poster design itself. Popularly known as “Uncle Spam,” the first two parts of the test, but prob- this Danny Garrett poster is a por- ably would not have satisfied the third Ownership of preexisting elements trait of Spamorama organizer David part. In the absence of any notice on Arnsberger. © 1982 Danny Garrett. Most poster designs include at least the Spamorama posters to the con- some elements that exist prior to and trary, it’s likely many people seeing independent of the poster. The most An anecdote involving a popular them may have believed Hormel common kinds of legal issues that arise luncheon-meat festival may provide a sponsored or endorsed the event. in this regard are those involving helpful illustration. For many years, one trademark, copyright and the right of of the most colorful annual celebrations publicity. held in Texas was Spamorama. Each 3 • Number 1 • Volume 23 • Spring 2005 • American Bar Association • Entertainment and Sports Lawyer “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.. Spamorama use was a parody, howev- to police its marks, made a business er, Hormel’s federal dilution claim decision not to challenge the unau- may have failed. Under the Federal thorized use of the Zig Zag mark on a Trademark Dilution Act (15 U.S.C. § 1966 Family Dog poster for Big 1125(c)), noncommercial use of a mark Brother & the Holding Company and is nonactionable and some courts have Quicksilver Messenger Service. It’s treated parody as per se noncommer- possible Zig Zag saw the mark’s use cial. See Dr. Seuss Enters. v. Penguin on the poster as enhancing the cachet Books U.S.A., 924 F. Supp. 1559, 1573- of its product among a significant 74 (S.D. Cal. 1996), aff’d, 109 F.3d 1394 segment of the ‘60s rolling-paper pur- (9th Cir.), cert. dismissed, 521 U.S. 1146 chasing public. (1997). It should be cautioned, however, Ultimately, the Spamorama saga that the foregoing two examples may had a happy ending because the two be colorful but are not necessarily sides came to an understanding and typical. Notwithstanding what hap- ever since then Spamorama has con- pened in those cases, the best course tinued to flourish with the blessing for poster artists (and event organiz- and cooperation of Hormel. Of course, ers) is to steer clear of trademarks it’s possible that the consequences for that they are not authorized to use. the organizer and poster artist might Ordinarily, it simply isn’t smart to have been considerably less benign include a trademark on a poster with- Detail from 1990 Spamorama poster had Spamorama not been responsible out permission. by Jim Franklin that prompted a for such a large spike in Texas Spam cease and desist letter. © 1990 Jim Copyright sales each year. Franklin. Since at least the 1960s, rock poster artists have been fond of using famil- For its part, Hormel also might iar images in their posters. Over the have alleged trademark dilution. years, photographs and illustrations Hormel actually claimed that both the have been appropriated and used, depiction of its product in the “Paté less in conscious defiance of copy- Passé?” illustration and the caption right law than out of convenience or placed its product in a bad light and as cultural statements. Persistently disparaged its mark. Hormel might popular, for instance, are famous car- toon characters; artists are fond of posing them in scandalously sala- cious or violent tableaus. For most original works of authorship, howev- er, the copyright owner has the exclu- sive right to make or authorize such a use. Therefore, a poster artist should Spamorama stay away from any copyright-pro- brought a tected work he does not have permis- sion to use. huge spike Traditionally, where the performer or promoter provides the artist with to Hormel’s the performer’s photograph or an sales. illustration, it has been understood Alton Kelley and Stanley Mouse that the artist is authorized to use it in poster, popularly known as “Zig Zag the poster design — either because Man,” advertising a show by Big the copyright is owned by the per- Brother and Quicksilver Messenger former as a work-for-hire or by Service. © 1966 Chet Helms DBA assignment or the photographer, for Family Dog Productions. instance, has licensed the performer to make and authorize such a use. have filed suit under the Texas anti- Similarly, the unauthorized use of The use of other images not con- dilution statute and, if filing after a cigarette-paper trademark in the trolled by the performer is a different January 1996, it probably would have 1960s may have been forgiven story. Ordinarily, exercising any of the asserted a federal dilution claim as because it was good for business. It rights exclusively reserved to the well. appears that the Zig Zag cigarette copyright owner without permission If the court determined that the paper company, despite its obligation is copyright infringement. Number 1 • Volume 23 • Spring 2005 • American Bar Association • Entertainment and Sports Lawyer • 4 “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.. Mouse created their famous “Skull and Roses” poster, they created a poster advertising a Denver concert by the bands the Other Half and the Sons of Champlin. This poster features a smil- ing visage similar to the grinning sim- pleton’s noggin Benge would prop on top of the skeleton in his own poster three decades later. The Neumanesque face used by Kelley and Mouse is one of the many variations of that mug that were circu- lating long before Mad Magazine adopt- ed young Alfred E. as its spokesmodel. In fact, the widow of an artist who had created a caricature featuring a grinning boy (and known as “Me worry?”) brought an infringement suit against the publisher of Mad Magazine in 1965. Stuff v. E.C. Publications, 342 F.2d 143 (2nd Cir. 1965), cert. denied, 382 U.S. 822. Alton Kelley and Stanley Mouse The “Me-Worry?” artist had been poster popularly known as “Expan- Silkscreen poster created by Scott issued a copyright in 1914, but over the sion,” advertising a Family Dog Benge to advertise a concert for the years he allowed many unauthorized show in Denver. © 1967 Chet Helms band Leftover Salmon. © 2002 Scott copies of the print to circulate unchal- DBA Family Dog Productions. Benge (FGX). lenged, including many without a copy- right notice. Finding that the copyright In cases where an image appropriat- In a recently published book featur- owner had thereby effectively dedicated ed for a poster is not in the public ing more than 1,800 rock posters — the his caricature to the public, the 2nd domain, it’s not uncommon for the Art of Modern Rock by Paul Grushkin Circuit affirmed dismissal of the com- poster artist to defend against a charge and Dennis King — one of the most plaint against Mad. of infringement by claiming that the eye-catching among them includes the unauthorized inclusion of the image is a illustration of a skeleton holding a fair use — particularly a parody fair wreath of roses. Rather than a skull, the use. Parody is not included among the skeleton is topped by the head of a grin- examples of fair use listed in the 1976 ning simpleton wearing a rose tiara. Copyright Act, but it is specifically men- This poster was created by recently tioned as a possible fair use in the deceased artist Scott Benge in 2002 for a House Report (H.R. Rep. No. 1476, 94th performance by the band “Leftover Cong., 2d Sess. 65-66 (1976)). Salmon.” The Supreme Court has recognized No doubt many viewers will find that parody may qualify as a fair use that the design looks vaguely familiar and has noted that a use which and for good reason. The skeleton illus- advances the arts by transforming a tration is one of the most recognizable previous work serves the purpose for rock images of the last 40 years. It’s which copyright was created. Campbell been closely identified with the Grateful v. Acuff-Rose, 510 U.S. 569 (1994). A use Dead since it appeared in 1966 on a is transformative when, in the words of Family Dog poster by Alton Kelley and Judge Pierre Leval, it “adds value to the Stanley Mouse. Similarly recognizable original [and enriches society with] new in its own right is the grinning simple- aesthetics, new insights and under- ton’s face, which conjures up goofy Mad standings . . . .” “Toward a Fair Use Magazine cover boy Alfred E. Neuman. Standard,” 103 Harv. L. Rev. 1105, 1111 But where did these images come (1990). Parody is by its very nature from? The skeleton was not original transformative. with Kelley and Mouse; it was drawn Yet many poster artists labor under a by Edmund Joseph Sullivan, a late 19th Grateful Dead poster popularly fundamental misconception regarding and early 20th century artist, as one of known as “Skull and Roses” by parody: the mistaken assumption that Alton Kelley and Stanley Mouse. © the 76 illustrations he did for the every clever, thought-provoking or 1966 Chet Helms DBA Family Dog humorous use of a work will qualify as Rubáiyát of Omar Khayyám. In 1967, just Productions. a little more than a year after Kelley and a parody for copyright purposes. To be 5 • Number 1 • Volume 23 • Spring 2005 • American Bar Association • Entertainment and Sports Lawyer “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.. considered a fair use, a parody must Michael Moore in a black suit and sun- ed that Woods’ right of publicity was target the underlying work and not glasses, holding an oversized micro- outweighed by the First Amendment merely use that work as a vehicle. phone in front of the New York sky- and society’s interest in freedom of Two movie-poster cases, both coinci- line beneath the words “Protecting the artistic expression. ETW Corp. v. Jireh dentally involving people with the sur- earth from the scum of corporate Publishing Inc., 332 F.3d 915 (6th Cir. name “Moore,” may help illustrate this America.” 2003). point. In Leibovitz v. Paramount Pictures The Michael Moore poster may In reaching this decision, the court Corp., the 2nd Circuit held that it was a have been clever and humorous, but reviewed a number of cases where the fair use for a movie ad to spoof a 1991 the court enjoined Miramax from right of publicity was at issue, including Vanity Fair cover featuring a nude pho- using it because it wasn’t transforma- a California case involving the unautho- tograph of Demi Moore taken by Annie tive; it did not target the “Men in rized use of the images of the Three Liebovitz when Moore was eight Black” ads but merely used Stooges, Comedy III Prods. Inc. v. Gary months pregnant. 137 F.3d 109 (2nd Cir. Columbia’s copyrighted work as a Saderup Inc., 25 Cal. 4th 387 (2001), cert. vehicle to poke fun at corporate denied, 534 U.S. 1078 (2002). In the America. Comedy III case, artist Gary Saderup had The safest course for a poster artist is created a drawing of the famous come- to avoid any use of copyright-protected dy team and reproduced the drawing material unless permission from the as lithographic prints and on T-shirts. copyright owner is undisputed. Where In balancing Woods’ right of publici- The safest the artist feels inexorably compelled to ty against the First Amendment, the use without permission another party’s California Supreme Court borrowed course for a work to make a point, he should be sure part of the fair use analysis from copy- poster artist that the parodic character of his design right law, stating that the transformative is reasonably obvious and that the work nature of a work could weigh against is to avoid he is using without authorization is the work being in violation of the right clearly a target of his criticism or com- of publicity. The court held, however, using any ment. that Saderup’s rendition of the Three copyrighted Stooges was in violation of California’s Right of publicity right of publicity because his likenesses material without In addition to trademark and copy- of the Three Stooges were not so trans- permission. right concerns, a poster artist should forming that they were primarily cre- avoid violating a performer’s right of ative and artistic expression; they were publicity. A creature of state law, the merely literal images of the subjects, right of publicity is an outgrowth of the deriving economic value from the fame right of privacy. Typically it authorizes of Three Stooges. recovery of damages when an individ- The right of publicity, in addition to ual’s name, photo or likeness is used for whatever trademark rights subsist in a 1998). The movie poster, which was for commercial purposes without his or her band or performer’s name, should give “The Naked Gun: The Final Insult 33 consent. Some poster artists prefer to any poster artist pause about creating a 1/3,” featured actor Leslie Nielson’s include illustrations of the featured per- poster that includes a performer’s face atop the photo of a nude eight- formers on the posters they create. name, photo or likeness without author- month pregnant model. The court But even if the performer’s image ization. This is particularly true if many determined that the poster clearly took does not appear, a poster might still vio- of the posters are intended to be sold satiric aim directly at Liebovitz’s photo. late the performer’s right of publicity if after the event rather than distributed as A different result was reached, his or her name is included on the ads ahead of time. however, in a case involving the popu- poster without permission. Again, lar film “Men in Black” and a film by where the poster is commissioned by Can a commissioned poster be Michael Moore titled “The Big One.” the performer or by the concert hall act- infringing? Columbia Pictures Indus. v. Miramax ing on behalf of the performer, it may For 30 years, the rock poster system Films Corp., 11 F. Supp. 2d 1179 (C.D. be reasonable to believe that the poster seemed to work well. A concert promot- Cal. 1998). In this case, the trial court artist is authorized to use the per- er or in rare cases a band itself would found that the doctrine of fair use was former’s name, photo and likeness. hire an artist to create a poster to gener- unavailable to Miramax as a defense. When a dispute does arise regarding ate interest in a show. If there were Reminiscent of Will Smith and Tommy the right of publicity, this right is often posters left over after the event, promot- Lee Jones wearing black suits and sun- seen to be in tension with rights guaran- ers or club owners sold them. glasses and holding over-sized teed by the First Amendment. In one Sometimes the posters were sold one weapons in front of the New York sky- case where a publisher was marketing a at a time directly to the public, some- line beneath the tag line “Protecting limited-edition art print of Tiger Woods times in bulk to dealers. If a poster artist the earth from the scum of the uni- made without the golfer’s permission were lucky enough to end up with any verse,” the Miramax poster featured from a painting, the 6th Circuit conclud- copies of the poster, he or she usually Number 1 • Volume 23 • Spring 2005 • American Bar Association • Entertainment and Sports Lawyer • 6 “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.. would give some away but also might show in Pittsburgh. The members of may have been able to argue he was try to sell a few to augment the general- both bands were pleased enough by the misled by not only the conduct of the ly minimal payment received for posters that they autographed copies promoters and bands but also by the designing the piece. for Arminski and the members of Phish actions of the individual band mem- even wrote “good work” on the one bers, including when they autographed they signed. copies of the posters and complimented Nonetheless, shortly thereafter, a him on them. Or the facts may have lawsuit was brought against Arminski supported an unjust enrichment argu- on behalf of the bands. Filed in the ment — that, if Arminski was Southern District of New York, it estopped from making back his expens- alleged trademark infringement, dilu- es and the value of his time spent creat- tion, violation of the New York right of ing posters that benefited Phish and the publicity and assorted other claims. Dave Matthews Band, the bands would Bama Rags Inc. v. Arminski, No. 97 Civ. be unjustly enriched. 5932 (S.D.N.Y. filed Aug. 11, 1997); Phish Regardless of which party had the Inc. v. Cushway, No. 97 Civ. 5933 stronger legal case, Arminski appeared (S.D.N.Y. filed Aug. 11, 1997). to win in the court of public opinion. Arminski had been commissioned to Trademarks and the performers’ names, do the posters not directly by the bands photos and likenesses are concededly themselves but by the promoters, the valuable assets that they are obligated same sort of arrangement used by to protect; but suing a graphic artist for countless rock poster artists and pro- attempting to recoup what it cost him to moters and bands for decades. In this produce an apparently authorized ad case, the fact that some of the Phish and that necessarily included those marks, Dave Matthews Band posters were names, photos and likenesses struck being offered for sale on the Web site of many as cynical and overreaching. popular poster dealer ArtRock may Some felt that a realistic appreciation of have made Arminski seem like an obvi- the relative values of the different intel- As has been industry practice for ous or tempting target. lectual properties at issue was lost in all many years, this poster, created by Although irrelevant to the underly- the shouting about who was taking the author for a concert by Public ing issues in the case, it is interesting to advantage of whom. Image Limited (PIL) was commis- note that Arminski was quoted at the Taking a decidedly long-term view, sioned by the concert promoter. time as revealing his annual income Jagmo © 1989 Nels Jacobson. rock-poster expert Eric King was of the was approximately $18,000; Phish opinion that well after the two bands reportedly grossed more than $20 mil- were gone and forgotten people would Mark Arminski is one of the poster lion on one tour at about that same still be enjoying Arminski’s art. King artists who has tried to cover his time. may have summed up what fans famil- expenses by selling his posters. He In his defense, Arminski might have iar with art history reluctantly might began designing rock posters in Detroit argued that he had a First Amendment concede when he suggested that suing in the mid-’80s and soon became one of right to create art using the bands’ Arminski on behalf of Phish or the the country’s most popular and prolific names, photos and likenesses à la ETW Dave Matthews Band was “similar to poster artists. Arminski typically would Corp. v. Jireh Publishing Inc. Based on the suing Toulouse-Lautrec on behalf of a cover all costs himself. At the behest of well-settled course of dealing in the can-can dancer.” a concert promoter, he would design a industry and trade usage established At the time, an official with the Dave poster and print several hundred over decades between artists, promoters Matthews Band’s merchandising com- copies. In lieu of any payment from the and bands, Arminski also might have pany apparently conceded to a newspa- promoter or band, however, he would raised an apparent-agency defense or per columnist that he understood keep half of the posters to sell after the argued that he had an implied license to Arminski had believed the promoters event in hopes of covering his expenses use the bands’ trademarks, names, pho- were empowered to authorize him to and the value of his time and talent. tos and likenesses. As another affirma- use the bands’ intellectual property. The This routine worked well for tive defense, Arminski might have cases settled soon thereafter, leaving in Arminski, as it had in various permuta- invoked the doctrine of estoppel by their wake no discernible details regard- tions for other artists for decades. It acquiescence. He had relied on assur- ing resolution of the issues involved. worked well, that is, until August 1997. ances by the promoter that the posters What did remain was a stark warn- Two of the bands Arminski was com- were authorized and that he had per- ing for poster artists that they were sus- missioned to create posters for were the mission to sell the posters to cover his ceptible to being taken advantage of by Dave Matthews Band and Phish. The expenses. the system they’d grown accustomed to poster for the Dave Matthews Band If indeed Arminski’s uses of the — that they could no longer count on advertised a 1995 concert in Cleveland bands’ trademarks were unauthorized the collegial and mutually beneficial and the Phish piece advertised a 1996 as alleged in the bands’ complaints, he relationship they had enjoyed for 7 • Number 1 • Volume 23 • Spring 2005 • American Bar Association • Entertainment and Sports Lawyer “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.. decades with the bands for whom Hendrix Experience are both listed at Contracts with concert halls and they’d been creating posters. $5,000; the 1966 Jefferson Airplane bands But despite public opinion and poster for The Fillmore, known to col- Given that rock poster designs and regardless of why and on what terms lectors as “BG1,” is listed at $7,500. the rights surrounding them can be the Arminski cases settled, it is indis- One San Francisco area collector very valuable, ownership of those rights putable that a trademark is valuable recently advertised his numbered sets occasionally has been contested. For the intellectual property that must be pro- of Family Dog (1966-1969) and earliest rock posters, there generally tected by its owner and, subject to bal- Fillmore West (1966-1972) posters at were no written agreements regarding ancing against the protections of the $250,000 and $350,000, respectively; the respective rights and obligations of First Amendment, the right of publici- another is asking $750,000 for both the poster artists relative to the clubs, ty affords a performer exclusive con- sets together. promoters and bands. In fact, that has trol over his or her name, photo and Aside from what first-edition been true for the vast majority of likeness. Thus, the best course for any copies of posters may be worth, the posters produced from the ’60s until poster artist is to ensure that use of rights held by their copyright owners today. any trademark, name, photo or like- can be quite valuable as well. Some of At some point, however, probably ness is authorized by someone verifi- the most popular poster designs from after it became apparent that posters ably empowered to do so. the ’60s have been endlessly exploited could generate a revenue stream wholly on album covers, T-shirts and else- apart from the door money that came in where. Of course the Copyright Act for the shows they advertised, promot- vests in the copyright owner the ers such as Bill Graham required poster exclusive right to make and sell artists to enter into written agreements. copies of a work, to display the work It appears that over the years these publicly, to prepare derivative works agreements have become less friendly and to allow others to do the same. to the artists. Clearly, a poster design that strikes a When several of the poster artists chord with the public has the poten- challenged Family Dog owner Chet tial of becoming a cash cow for a Helms’ claimed ownership of the rights copyright owner, assuming he or she in the Family Dog posters created can avoid intractable trademark or before Jan. 1, 1978, the effective date of right-of-publicity issues with bands the 1976 Copyright Act, the court ruled or concert halls. that the posters were works made for Yet a little over a hundred years hire under the 1909 act and that Helms ago, it wasn’t clear that advertising owned the rights. posters would even be accorded Since 1978, savvy promoters and copyright protection. In a 1903 case bands have included in their agree- involving the unauthorized copying ments either language that makes it of three circus posters, the Supreme clear the artist is assigning to the pro- Court reversed lower courts that had moter or band all right, title and interest directed and sustained a verdict for in the work or explicit work-for-hire the defendants on the ground that language or both. As is common in such posters were not within the pro- recording-artist agreements, in case the tection of copyright law. Bleistein v. work subsequently is deemed not to be Photocopies of these Mark Arminski Donaldson Lithographing Co., 188 U.S. a work made for hire, an assignment-of- posters were included as exhibits to 239 (1903). copyright provision is included in addi- the complaints filed against the In the words of Justice Holmes, tion to the work-made-for-hire lan- artist in 1997 by Phish and the Dave Matthews Band. © 1995, 1996 Mark vindicating the worth of posters and guage. Arminski. writing for the Supreme Court: An artist may find that a written “Certainly works are not the less con- agreement commissioning the creation nected with the fine arts because their of a band poster is a handy thing to Ownership of the poster design pictorial quality attracts the crowd . . . have when that band begins suing Rock posters, as has been noted, A picture is none the less a picture unauthorized artists, but more often can be valuable commodities in their and none the less the subject of copy- than not the price for such freedom own right. One respected price guide right, that it is used for an advertise- from infringement claims is ownership lists the amounts received for single ment. And if pictures may be used to of his or her copyright in the work. near-mint copies of certain posters at advertise soap or the theatre or Sophisticated bands and clubs typically many thousands of dollars. The 1966 monthly magazines, as they are, they want to own the copyright in the poster “Skull and Roses” poster by Kelley may be used to advertise a circus.” Id. design, particularly if it’s been created and Mouse and Rick Griffin’s 1968 at 251. Or, for that matter, a rock from scratch specifically for one of their “Flying Eyeball” poster for the Jimi concert. events.

Number 1 • Volume 23 • Spring 2005 • American Bar Association • Entertainment and Sports Lawyer • 8 “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.. Nonetheless, it is common for the ly that in most cases, even today, when handsome profit selling posters, but artist to retain ownership of the original a poster artist is commissioned to create rights in the poster art remained with art and the right to use the work in ret- a poster, there is absolutely no discus- the artists or the entities that had hired rospectives. Sometimes, if the poster sion about who owns the rights in the them to create the posters. Dealers were design incorporates a free-standing or design. Typically, by default, the artist interested in the posters themselves pre-existing work, such as a painting to as creator of the work would own the and, except for the most unscrupulous which text is later added, the artist copyright. But no doubt some promot- among them, they were not interested grants only an exclusive license in the ers and bands may erroneously assume in reprinting the posters or preventing poster to the party commissioning it. that they own the copyright in any anyone else from displaying them. The license would allow the commis- poster they commission, by virtue sole- Despite the occasional squabble sioning party to use the poster design to ly of paying for its design and printing. between an artist and promoter or deal- promote the show or in any other way For performers who wish to tightly er, the members of the poster communi- it chooses. To the artist, however, is control their images, it may make sense ty generally shared a common love and reserved the right to license others to to find poster artists or studios they like appreciation for rock art and a desire use the work itself as long as it isn’t and to use them exclusively for all of that the posters be seen by as many used for another poster. their concert posters. Some bands enter people as possible. That may no longer One unreasonable and woefully into exclusive agreements with artists or be true. overbroad provision sometimes found studios they are fans of, for all of the Legendary rock impresario Bill in poster contracts is the typical war- posters needed for an entire tour. One Graham put on thousands of shows ranties and representations paragraph popular band has cut an exclusive deal and commissioned thousands of rock that presumes the artist is sole owner of for all of its 2005 poster needs with a posters and handbills from the mid ’60s all rights in the poster design. A poster design studio in Austin, Texas. on; and after his untimely death in 1991, is meant to advertise a specific concert The studio creates a different design the company he founded, Bill Graham at a particular club on a particular date. for each stop on the band’s tour. Each Presents, continued to produce shows It is reasonable to expect that the poster design features the artists’ interpretation and commission original posters. artist would create an original design Currently, however, the rights to almost and thus that he or she could warrant all of those posters are owned neither that it does not infringe the copyright in by the poster artists who created them, something else. nor by the musicians featured on them, But it makes no sense for the poster nor by Bill Graham Presents. artist to warrant or guarantee, as he or The poster Graham’s estate sold his organiza- she is routinely asked to do, that the tion to a handful of Bill Graham design does not infringe any “other pro- community Presents executives in 1995, who in turn prietary rights of third parties” or that generally shared a sold it to a Wall Street banker from the artist has “the power to grant all whom it was purchased by an enor- rights contemplated by the agreement, common love and mous media conglomerate which, in including, but not limited to, trademark appreciation for 2002, sold to a Minnesota company for rights, rights of privacy or publicity or approximately $5.5 million that portion any other proprietary rights owned by rock art. of the business known as the Bill third parties.” Graham Archives (BGA). The deal The poster necessarily will include included what was in essence a quit band and club trademarks that the artist claim deed for all of the copyrights in has no rights to (except in those unfath- BGA posters created through the year omably rare instances where the poster of a specific lyric by the band. The sim- 2000 and all copies of those posters in artist is also the only performer adver- ple agreement sets out how many the Archives at that time. tised as well as the owner of the loca- posters will be printed for each show, The Minnesota company launched a tion and its trademarks). The party who gets them and how the money is Web site from which to sell its posters. It commissioning the poster and more split. The agreement specifies that the named the site Wolfgang’s Vault as an than likely drafting the agreement (the poster runs are limited, but reportedly it esoteric reference to Bill Graham’s real club or band or possibly the record doesn’t address who owns the copy- name, Wolfgang Grajonca and presum- label), would be in a much better posi- rights. ably to add a patina of poster bona tion than the artist to guarantee that the fides. band and location trademarks weren’t Third party acquisition of rights So far, the organization behind being infringed or the performers’ In addition to all of the other twists Wolfgang’s Vault (WV) has been injudi- rights of publicity transgressed. complicating the intricate and ever- ciously aggressive about asserting its Despite the trend to memorialize in evolving choreography between artists, newly acquired poster muscle. It has writing agreements between poster bands and promoters, an interloper of prohibited at least one independent artists and promoters, clubs and per- sorts has now crashed their decades-old rock-poster archive site, formers, such contracts remain the dance. There had always been poster ClassicPosters.com, from displaying exception rather than the rule. It is like- collectors and dealers who made a images of any BGA posters. 9 • Number 1 • Volume 23 • Spring 2005 • American Bar Association • Entertainment and Sports Lawyer “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.. Accordingly, in place of each image of a phonorecord lawfully made under this Archives, LLC v. Dorling Kindersley Ltd., BGA poster, ClassicPosters.com has title or any person authorized by such No. 03 Civ. 9507 (S.D.N.Y May 11, 2005). posted a notice stating “Image forbid- owner, is entitled, without the authority In 2003, Dorling Kindersley (DK) pub- den — copyright holder requests that of the copyright owner, to sell or other- lished Grateful Dead: The Illustrated Trip. we not show image.” wise dispose of the possession of that As the title suggests, the book contains Also, WV has sent cease-and-desist copy or phonorecord.” 17 U.S.C. § a wealth of visual images — more than letters to collectors and dealers who’ve 109(a). 2,000 photographs and reproductions of posted BGA posters for sale on eBay or This doctrine attempts to strike a bal- art work. Among those 2,000 images are elsewhere. Although Graham died ance between assuring sufficient reward a handful of reduced reproductions of before the widespread popularity of the to the copyright owner and permitting posters the copyrights of which appar- Internet and eBay, reportedly he did not unimpeded circulation of copies of the ently were included in the BGA intellec- make it a practice to threaten collectors work. Whether the First Sale Doctrine tual property purchased by WV. or dealers who circulated ads or cata- offers any cover to the poster sellers in logs featuring posters in which Bill this particular instance has not yet been Graham Presents owned the rights. tested in the courts. Possibly because he felt that the more Few poster dealers have the financial people saw those posters and under- wherewithal to call WV’s bluff; and stood there was a thriving market for that’s even more true for ordinary folks them, the more the posters and his interested in nothing more than selling rights in them were worth. that one dog-eared Dead poster they picked up in the ’60s. While conceding that someone “may have the right to sell an original [poster]” on eBay, WV has nonetheless demanded that such a seller refrain from displaying any pho- tographic images of the poster that’s for sale. In light of WV’s position on this issue, it’s interesting that WV displays on its own site, without authorization, the images of hundreds of posters in which it does not own the rights, includ- ing more than 300 Family Dog items. Historically, few poster copyright owners have felt the need to withhold their works from the public. Generally the artists want their work seen by as many people as possible — and so do venues and promoters, because as long Because this poster created by the as they’re in business, even posters for author for a 2002 Los Lobos concert past events function as a form of adver- fell outside the range of Fillmore tising. posters acquired by Wolfgang’s Vault, the latter was unable to con- Artists who’ve had the rights to their “Image Forbidden” notice used by test its inclusion in the Art of Mod- posters purchased by WV have found ern Rock. © 2002 Fillmore Corp. ClassicPosters.com in place of those images withheld not just from poster images owned by Wolfgang’s archive Web sites but also from influen- It appears that before the book was Vault. tial books about poster art. The Art of published, the parties attempted to Modern Rock includes posters by more work out an agreement regarding By contrast, WV has threatened legal than 375 of the world’s most popular licensing fees, but for some reason the action against people attempting to sell rock poster artists. Published by deal fell apart. As explained by the posters on eBay based on the premise Chronicle Books in 2004, it is arguably court, Grateful Dead Productions, that the sellers have made copies of the one of the most significant books ever which was cooperating with DK, initial- posters and publicly displayed them, produced on the subject. Yet some of ly approached WV on DK’s behalf. thus infringing exclusive rights owned the best work of a number of important While not rebuffing the Grateful Dead by WV. poster artists was excluded because WV outright, WV said it would allow repro- Of course, legitimate owners of indi- declined to allow the authors to use any duction of the poster images in vidual posters are free to sell their of the posters in which it claims owner- exchange for the band granting WV the posters according to the First Sale ship. right “to create CDs and DVDs out of Doctrine. As codified in the Copyright In 2003, WV had sued another pub- [WV’s] archived audio and video Act, the First Sale Doctrine provides lisher that reproduced BGA posters recordings of Grateful Dead concerts.” that the “owner of a particular copy or without permission. Bill Graham Id. at 2. Number 1 • Volume 23 • Spring 2005 • American Bar Association • Entertainment and Sports Lawyer • 10 “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.. Predictably, the Grateful Dead reject- nities, the court determined that the ed that offer and from then on DK dealt fourth factor also weighed in favor of with WV directly. By autumn 2003, a fair use. Finally, the court noted that deal regarding six works had been DK’s effort to license the images reached but negotiations stalled over weighed in favor of fair use as well two additional works — a 1967 poster because it indicated good faith on DK’s by Jim Blashfield advertising a Sept. 15 part. Thus, on balance, the factors in concert at the Hollywood Bowl featur- favor of finding fair use were control- ing Jefferson Airplane, the Grateful ling and the court held that DK’s use Dead and Big Brother & the Holding was noninfringing. Company and a 1966 Fillmore poster Poster artists may be conflicted designed by Wes Wilson advertising regarding the outcome of the DK case Aug. 12 and 13 performances by because, although it can and probably Jefferson Airplane and the Grateful should be read quite narrowly, they Dead. WV offered to license these nonetheless may find its implications for images for $2,500 each. poster artists who own the rights to their On Nov. 17, 2003, a representative of own work troubling. It appears that WV sent DK two e-mails. The first stat- artists almost universally disapprove of ed “you have included at least three, if how WV has conducted itself. WV clear- not more, images that we own and have ly values the posters it owns the rights the copyright to.” The second threat- to, but not, apparently, the dynamics of ened that “if we do not have an agree- the community that created them. The ment by close of business tomorrow, I consensus among artists seems to be After seeking $2,500 to license a will instruct [our lawyers] to take the that, for all WV’s tough tactics, it has thumbnail reproduction of this 1967 most aggressive action possible.” Id. at Jim Blashfield poster for a book done little to support them and actually 3. about the Grateful Dead, the puta- has made it more difficult for the public Approximately one week later, WV tive copyright owner brought a $1.05 to view and appreciate their work. made good on its threat by filing suit million infringement suit against the Nonetheless, as much as artists might against DK for copyright infringement; publisher when the Blashfield like to see WV get its comeuppance, they WV alleged that it owns the copyright thumbnail and six others appeared should realize that any broadening of the in seven posters reproduced in the book in the book without permission. BGA v. DK rationale might tend to and that DK included them without © 1967 Bill Graham. undermine their own ability to control permission. For some reason, WV made the use of works in which they still own no mention of the eighth poster in its raphy of the band — a kind of criti- the rights. It appears that WV will appeal complaint — Wes Wilson’s 1966 cism, comment or research — that fits to the 2nd Circuit. If it does, many poster Jefferson Airplane/Grateful Dead among the uses listed in the preamble artists may find it difficult to make a poster. In addition to an injunction, WV to § 107 as examples of possible fair use. rational decision about whom to root for. sought $1,050,000 in statutory damages. Also, the court found that DK’s Creating rock posters has never been Cross motions for summary judgment “thumbnail use” of the images in a about what’s logical, rational or pre- were filed, with DK arguing that the timeline was “sufficiently transforma- dictable — or about getting rich. Since inclusion of seven small poster images tive and different from the original pur- the 1960s, the best posters have been in its book about the Grateful Dead was pose to advertise, draw attention to and born primarily out of the poster artists’ a fair use. solicit listeners to an event, such that the passion for the music. For not only does The 1976 Copyright Act has set out market is not one to be expected to be a poster invite the audience to attend an four factors for courts to consider when reserved to the copyright holder.” BGA event, but after the concert is over, long dealing with fair use cases such as this: v. DK, No. 03 Civ. 9507 at 7-8. after the last notes have faded and the (1) the purpose and character of the use, The second factor weighed slightly in stage lights have gone dark, that poster including whether the use is commer- favor of fair use because the posters are continues to provide a powerful physical cial or nonprofit; (2) the nature of the creative works. Although it was undis- link between the band and its audience underlying copyrighted work; (3) the puted that DK had reproduced the — both the audience that actually amount and substantiality of the por- posters in their entirety, the third factor attended the show and that broader tion used in relation to the underlying weighed in favor of fair use because audience of fans who wish they had. work as a whole; and (4) the effect of each image was reduced to approxi- Serious poster artists don’t take this the use on the potential market for the mately 15 percent of its original size and responsibility lightly and their posters underlying work. 17 U.S.C. § 107. each occupied approximately one tenth have contributed much to the rich cul- After conducting its fair-use analysis, of one page in a 480-page book. ture surrounding popular music. the court granted summary judgment Concluding that DK’s use had no Although change is inevitable and must in favor of DK. It found that the first substantial effect on the market for the be dealt with, it is to be hoped that the factor weighed heavily in favor of find- original use because DK’s use was out- freedom traditionally given poster artists ing fair use because the book is a biog- side the ambit of lost licensing opportu- to express their passion for the music is 11 • Number 1 • Volume 23 • Spring 2005 • American Bar Association • Entertainment and Sports Lawyer “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.. not extinguished by avarice and niggling tional poster for one of their shows. der the immense reservoir of good will that over-control. Bands can take an active interest in has collected around rock poster art over the who is commissioned to design their years. Conclusion posters: They may wish to establish Rock poster artists should be keenly aware Over the last 40 years, as with most some parameters and allow local pro- of the ways in which copyright law protects things, the world of rock posters has moters to oversee the process; or they them and the ways in which it protects oth- grown significantly more complex — may want to find studios they like and ers. When they are presented with a written even fairly contentious. Gone are the contract with them exclusively. agreement, they need to actually read it and days when a poster artist could rely on a Whichever way they go, it is worth seek legal advice regarding anything they concert promoter’s assurances that a remembering that in terms of leaving a either don’t understand or are unsure of. An poster the artist created for a show legacy, a brilliant poster design may pro- artist should fight for fair terms and should wouldn’t run afoul of the band’s mer- vide as much of a lasting impression of a refuse to warrant or guarantee things over chandizing or marketing machinery. band as anything else. Although most which he or she has no control — that the Gone are the days when a promoter or any band would surely rather be remem- necessary inclusion of particular third-party club could assume that because it com- bered for its music than simply for the trademarks, names, photos or likenesses in missioned a poster it owned the copy- appearance of its name on a poster, the design, for example, doesn’t infringe the right. Today, bands, clubs and poster being remembered at all is a good thing. proprietary rights of third parties. Clearly, artists all tend to pay much more atten- Some of the bands mentioned on land- where the other party to the agreement is the tion than they did in the past to the intel- lectual property rights inherent in posters. In addition to the function of rock posters as advertising, some posters also will enjoy lasting value as decorative art or as important historical artifacts. Some are worth a lot of money already; others will be. These days, vintage posters com- mand ever higher prices among collec- tors and there is a growing appreciation for today’s newly minted posters. For all of these reasons, now more than ever before, each party connected to the cre- ation and dissemination of rock posters band, club or promoter, that other party is in Detail showing the line added by should be conscious of the legal issues Chet Helms to Kelley and Mouse’s a much better position than the artist to make involved. “Zig Zag Man” poster. © 1966 Chet such a guarantee. It goes without saying that when con- Helms DBA Family Dog Productions. Where possible, artists should insist on cert promoters book bands, they should written authorization to use marks, names, pay attention to the advertising and mer- photos and likenesses and should clear with chandise provisions in the bands’ live mark Family Dog and Fillmore posters the bands and concert halls any arrangement personal appearance agreements. are as famous for being included on for selling their posters themselves. To the Promoters shouldn’t mislead poster those posters as they are for their contri- extent that lawyers can make their legal serv- artists regarding what a band has bution to the history of rock music. ices available to poster artists through authorized them to do; they shouldn’t Copyright assignees should protect lawyers-for-the-arts organizations, that might promise more than the band has granted their valuable rights in the posters they go a long way toward setting this perpetually them the authority to deliver. It can’t be control. To the extent that they have impecunious group on the right track. comfortable being caught in the middle painstakingly sought out and purchased Ideally, every party benefiting from a rock of a dispute between a poster artist and a these posters and copyrights, they poster or involved in its creation should band that feels wronged and wants to should be commended. Commended for understand and appreciate the interests at make an example of someone. recognizing the value in the posters and stake. The 1966 “Zig Zag Man” poster for Big Bands should jealously guard their the underlying designs. Commended as Brother & the Holding Company famously trademarks and should exercise strict well for whatever they do to preserve includes the line “What you don’t know control over the names, photos and like- the physical posters in their possession. about copying and duplicating won’t hurt nesses of their members. To the extent It might be to their advantage, how- you.” Notwithstanding Family Dog’s experi- that they wish to own the artwork on ever, not to be overly aggressive or ence, don’t bet on that. their packaging and promotional materi- unreasonable when dealing with the als, they should secure rights in it and artists who created the posters, collectors Nels Jacobson is a San Francisco IP lawyer who served they should enforce their copyrights. It who may cherish them and dealers who as art director for the SXSW Music Conference from may make sense, however, to appreciate have made selling rock posters a viable 1987 through 1992 and has been creating rock posters the difference between a bootlegger and business. Aside from the equities for 25 years. His e-mail is [email protected]. an artist actually hired to create a promo- involved, it would be a shame to squan- Number 1 • Volume 23 • Spring 2005 • American Bar Association • Entertainment and Sports Lawyer • 12 “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..