When a popular band breaks up, it’s often similar to what happens when two celebrities get divorced — a lot of quarreling over assets. Sometimes it’s worse, as often a band dissolution doesn’t have the benefit of any pre-nup providing guidance on how to divide the spoils of the success. Who, for example, gets to retain use of the band’s name?
Just ask the Beach Boys, the Doors, and Deep Purple, just to mention three groups whose members have faced off against each other over band name rights. Now, add the ’90s alternative rock group, Live, to the list. Lead singer Ed Kowalczyk wants to use “Live” as part of his solo act, but the band’s other original members are attempting to put a stop to that in a new trademark lawsuit.
Technically, it’s not the other band members, including Chad Taylor (lead guitar), Patrick Dahlheimer (bass), and Chad Gracey (drums) who are doing the suing, but rather Action Front Unlimited, the company that was set up by the band members and now holds the group’s trademarks. Each member of Live has an equal share of the company, according to a lawsuit filed in New York federal court.
Kowalczyk left the band in 2009 as a new vocalist (Chris Shinn) came in.
Since then, Kowalczyk has let the world know he’s still “Alive,” the title of his solo album. He’s said to be touring as “Ed Kowalcyk of Live.”
The other band members aren’t happy with what Kowalczyk has been doing so Action Front is suing. The former lead singer, who played a bit role in David Fincher’s Fight Club, is being accused of not informing the public he is no longer a member of Live nor telling them that his music isn’t endorsed by the band. This has caused “confusion,” says the lawsuit. Booking agents, theaters, arenas and the press are allegedly being deceived into thinking Kowalcyk still has affiliation with the group.
The plaintiffs are seeking an injunction plus $2 million in statutory damages for claims of trademark infringement, false designation of origin, and trademark dilution. Kowalczyk couldn’t be reached for comment.
Lawsuits like this have a way of festering.
The prototypical example is the large amount of litigation that followed the break-up of the original Platters. Singer Herb Reed became the last original member of the group to leave the band in the early ’70s and afterwards, the company (Five Platters Inc) that was formed by the original members, hired a new member to continue on as a new Platters group. That led to four decades of litigation which culminated just a few months ago when a judge ruled, “‘Only You,’ Herb Reed, have exclusive rights to the mark.” (Reed died last month.)
Often, in cases like this, it comes to who has continuously exploited the band name and who is recognized by the public as holding the greatest claim to the mark. Of course, the nature of the business partnership can also have an impact. In the Live situation, each of the four members had signed an Employment Agreement with the company organized to run the band’s services.
Live broke out with the 1994 album, “Throwing Copper,” which spent a year on the Billboard 200 album chart before hitting the No. 1 position. The names of the group’s hits seem rather ironic in retrospect, including “Lightning Crashes,” “Selling the Drama,” and “I Alone.” More name-play: According to the complaint, the original band members met each other in school in the 1980s and were first called, “Public Affection.”