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By Marcus Alan Goldberg
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The Vandals have made a name for themselves for more than 20 years out of making fun of people. Tracks such as “I’ve Got an Ape Drape” (“You can drive to Riverside and get one, too!”) off Hitler Bad, Vandals Good epitomize the tongue-in-cheek attitude the band with Huntington Beach origins have come to be known for.
But now it seems they’re in trouble—for the second time—over a 6-year-old joke that isn’t all that offensive. Or even illegal.
In 2004, the Vandals released their 10th full-length record, Hollywood Potato Chip. The original cover art featured the top of a building with the words “Hollywood Potato Chip” affixed to scaffolding. Across the top was “The Vandals” scrawled in the kelly green Daily Variety font and logo.
The cover was meant to serve as a humorous commentary on Hollywood culture, with the album title serving as a rather spectacular euphemism for dried-up semen on a casting couch.
A few months after the album’s release, Variety issued a cease and desist order and a lawsuit, claiming trademark infringement.
The two parties ended up settling, but not before the Vandals were forced to pay up, knowing they couldn’t afford to battle the powerful law firm Fulbright & Jaworski—even though bassist Joe Escalante was an entertainment lawyer himself. The Vandals complied and replaced the logo on future pressings and removed all traces of the original artwork from their website.
On March 24, however, Variety filed another suit over the same issue—this time, pertaining specifically to images posted by third-party members on the Internet, claiming the Vandals had ignored the agreement they had settled on.
Escalante—a former subscriber to the Hollywood paper—has spent his summer attempting to file a motion to move the case from a court in Delaware to one in Los Angeles. The Vandals have currently recorded two songs off an upcoming EP of protest songs and are planning a music video and a documentary.
Escalante speaks on the Vandals’ already-too-long-lasting legal woes and the benefit concert to help to beat the Hollywood entity.
OC Weekly:So what has developed since the last battle in 2004 between the Daily Variety and the Vandals?
Joe Escalante: They filed a case toward the end of March in Delaware after first demanding a bunch of money and weird things for us to agree to. They weren’t able to prove there were forbidden images that we were in control of. So [the Daily Variety’s law firm Fulbright & Jaworski] just said, “Well, okay. Then give us the money anyway.”
What did your original agreement stipulate?
The original agreement we signed six years ago says they couldn’t sue for anything unless we refused to take down what was on the Internet. Then, 30 days after them notifying us, and if we didn’t comply within that cure period, there could be a $50,000 fine, plus any attorney fees. But the images weren’t there, so they changed their accusations so they could come up with something. At first, they said, “Well, they’re on YouTube and Amazon and MySpace, so give us $75,000, and then sign all this stuff.” And we were like, “We don’t control YouTube, MySpace or Amazon or any of these things.” And it says in our contract that third parties are not part of our deal since we cannot control them.
Wait, so why doesn’t this whole thing fall under parody as part of the fair-use exemption in U.S. copyright law?
It does—but it also falls under “Well, sure, you think it’s a parody, but we don’t, so if we go to court, it’s going to cost you more, so why don’t you pay us?” It’s an extortion game we fell for in 2004, when we didn’t have enough money to fight them. Today, we still don’t have the money to fight them, but how can we not?
And that’s why you’re hosting the benefit at the Glass House?
We can’t afford to get attorneys in Delaware, where the suit is filed, so we have to fight them ourselves. And we think everybody should know about it because this is an abusive lawsuit. . . . They have this law firm with 950 attorneys, 60 of which are in Los Angeles—yet they’re suing us in Delaware. How many attorneys do they have in Delaware? Zero. They had to hire outside attorneys to even file this in Delaware. They just want to starve us into submission. We’re not a band that makes a lot of money, so I don’t know why they thought this was worthwhile to deal with us.
One of their big gripes is that they’re trying to prevent us from talking about the case and making fun of them and mocking them on our website. But you know the Vandals—that’s what we do. We mock. And if we can’t mock these guys, who can we mock? It’s mockable.
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