Al Jardine says there's a BAD conflict w/Mike. Aka: The welcome back AGD thread

[SurfRiderHawaii]

Funny how people repeat hearsay as fact. Read the Calif. Court ruling. It is clearly stated the license in not exclusive.
Some may think exclusive means Mike is the only one who can tour as the Beach Boys. But legally, that is not wholly true. Other BB licenses can be issued. It's all there for you to read.

As I said, you may be entirely correct.

I'm not sure why Al hasn't have tried to call himself a Beach Boy when playing concerts if that is the case though.

Probably because he got his ass kicked in his expensive stupid law suit. He didn't wanna pay for a license. He knows Mike likes to sue and didn't wanna go there again.

Now, I guess he has Brian on his side.......

[Cam Mott]

There were non-exclusive licenses in the period covered by the court document but has Mike had an exclusive license since? If they were non-exclusive now it seems Brian and Al would just take it up as long as they met the conditions of the license presumably if they were wanting what is being speculated from Al's comments.

[SurfRiderHawaii]

There were non-exclusive licenses in the period covered by the court document but has Mike had an exclusive license since? If they were non-exclusive now it seems Brian and Al would just take it up as long as they met the conditions of the license presumably if they were wanting what is being speculated from Al's comments.

Not at all. There is no indication things have changed.  If you read the legal analysis, there is no license required to bill themselves as original members of ttheBeach Boy, which is what Al said they wanted to promote themselves as.

So Brian's mgt sends BRI aa letter to that effect and Mike's lawyer objects. There you have Al's situation of Obstruction, as he puts it. Al talks about making sure the fans know who they are.

[Fun Is In]

How about

Brian Wilson, Al Jardine and David Marks Not Appearing as the Beach Boys

or
Do "tribute bands" require licensure from the owners of the name?

Brian Wilson, Al Jardine and David Marks Perform a Tribute to the Beach Boys

I know, that tribute band idea is SACRELIGE but it could work.

[urbanite]

"Read the Calif. Court ruling. It is clearly stated the license in not exclusive.
Some may think exclusive means Mike is the only one who can tour as the Beach Boys. But legally, that is not wholly true. Other BB licenses can be issued."  But have any additional licenses been issued?  I'm willing to bet the answer is no, and that the corporation would need to vote on it for it to happen.

[SurfRiderHawaii]

How about

Brian Wilson, Al Jardine and David Marks Not Appearing as the Beach Boys

or
Do "tribute bands" require licensure from the owners of the name?

Brian Wilson, Al Jardine and David Marks Perform a Tribute to the Beach Boys

I know, that tribute band idea is SACRELIGE but it could work.

Excellent! Maybe Brian or Al's people will see your post.

A recent example of BRI licensing the BB brand name:

http://www.hansensclothing.com/display.asp?id=10115

http://blog.pendleton-usa.com/2012/10/03/before-they-were-the-beach-boys-they-were-the-pendletones/

[Cam Mott]

I think we may be talking about two different things, or I maybe I don't get it. If you don't need a license for a fair use of the trademark then the license doesn't matter. I think Mike has an exclusive license but BAD may be able to use the name in ways without the license. I think that is what the court said, Al used the name in improper ways and also operated as if and claimed he had a license but it had not been approved or signed off on by BRI but presumably Al could use the name in proper ways without the license.  Or not.

[SurfRiderHawaii]

I think we may be talking about two different things, or I maybe I don't get it. If you don't need a license for a fair use of the trademark then the license doesn't matter. I think Mike has an exclusive license but BAD may be able to use the name in ways without the license. I think that is what the court said, Al used the name in improper ways and also operated as if and claimed he had a license but it had not been approved or signed off on by BRI but presumably Al could use the name in proper ways without the license.  Or not.

Well, BRI has only licensed one "Beach Boys". If you want to look at it that way, it's exclusive. Legally, it's not. BRI could license Brian as "Brian Wilson's Beach Boys featuring ......" Every license is exclusive to it's own binding terms and conditions with certain stipulations. If you read the court docs, Mike's license has stipulations and a fee. As long as he abides by the terms of his license, he is good, (except BRI could vote to revoke it. Which I just don't see at this point).

Also, the terms of his license prohibit him from releasing songs and other works as the Beach Boys.

Mike would already have released a half dozen concert DVDs of his band if he legally could. Same with all the BB band recordings he did with Adrian Baker. His license terms don't allow releasing it as BB music.

[filledeplage]

I think we may be talking about two different things, or I maybe I don't get it. If you don't need a license for a fair use of the trademark then the license doesn't matter. I think Mike has an exclusive license but BAD may be able to use the name in ways without the license. I think that is what the court said, Al used the name in improper ways and also operated as if and claimed he had a license but it had not been approved or signed off on by BRI but presumably Al could use the name in proper ways without the license.  Or not.

Cam, I think that there was a provision about using "preferred promoters." And "confusion in the marketplace" is another issue if there are two bands using "Beach Boys" in the performing marketplace.

On the old Larry King interview with Brian and Melinda, they talked about "the BRI license" which sounds like one license. And, they said it went to Mike because he was "family." I wonder if it is on YouTube.  If I had to guess, it was probably around 2004 during the SMiLE promotion.  (I'm guessing.)

And, I'm thinking that Mike appears to have been acting in conformity with the "rules of the road" so that he looks on pretty firm ground, notwithstanding that other people have changed their positions.  And, now it seems that C50 was not a BRI production, even if the clothing and goods connected to the C50 tour bear the mark, they might have been exclusive to the tour as a condition.  And, it could have favored BRI for the sales of products, and the C50 entity for the tour.

It would be surprising if things changed. 

[Cam Mott]

I think we may be talking about two different things, or I maybe I don't get it. If you don't need a license for a fair use of the trademark then the license doesn't matter. I think Mike has an exclusive license but BAD may be able to use the name in ways without the license. I think that is what the court said, Al used the name in improper ways and also operated as if and claimed he had a license but it had not been approved or signed off on by BRI but presumably Al could use the name in proper ways without the license.  Or not.

Well, BRI has only licensed one "Beach Boys". If you want to look at it that way, it's exclusive. Legally, it's not. BRI could license Brian as "Brian Wilson's Beach Boys featuring ......" Every license is exclusive to it's own binding terms and conditions with certain stipulations. If you read the court docs, Mike's license has stipulations and a fee. As long as he abides by the terms of his license, he is good, (except BRI could vote to revoke it. Which I just don't see at this point).

Also, the terms of his license prohibit him from releasing songs and other works as the Beach Boys.

Mike would already have released a half dozen concert DVDs of his band if he legally could. Same with all the BB band recordings he did with Adrian Baker. His license terms don't allow releasing it as BB music.

I may not be following you but I still believe Mike currently has an exclusive license since the judgment which I believe excludes other licenses by BRI. Which BRI could change in the future as they have in the past.

[SurfRiderHawaii]

I think we may be talking about two different things, or I maybe I don't get it. If you don't need a license for a fair use of the trademark then the license doesn't matter. I think Mike has an exclusive license but BAD may be able to use the name in ways without the license. I think that is what the court said, Al used the name in improper ways and also operated as if and claimed he had a license but it had not been approved or signed off on by BRI but presumably Al could use the name in proper ways without the license.  Or not.

Cam, I think that there was a provision about using "preferred promoters." And "confusion in the marketplace" is another issue if there are two bands using "Beach Boys" in the performing marketplace.

On the old Larry King interview with Brian and Melinda, they talked about "the BRI license" which sounds like one license. And, they said it went to Mike because he was "family." I wonder if it is on YouTube.  If I had to guess, it was probably around 2004 during the SMiLE promotion.  (I'm guessing.)

And, I'm thinking that Mike appears to have been acting in conformity with the "rules of the road" so that he looks on pretty firm ground, notwithstanding that other people have changed their positions.  And, now it seems that C50 was not a BRI production, even if the clothing and goods connected to the C50 tour bear the mark, they might have been exclusive to the tour as a condition.  And, it could have favored BRI for the sales of products, and the C50 entity for the tour.

It would be surprising if things changed.  

That is all part of the Jardine Family and Friends lawsuit/appeal.  BRI offered Al a license BECAUSE there would have been confusion, and loss of income without one. BRI  would have suffered a loss of income with Al using the Beach Boys name without paying a fee. As a matter of fact, that was one argument against Al in the appeal. Without Al paying a fee, there was/would be a loss of revenue.  BRI is a corporation and licenses a brand. They, the corp, doesn't care about competition to Mike's band so much as they care about maintaining, or increasing revenue.

Unless someone has some other documentation saying otherwise, there is nothing stopping Brian or Al from taking out a license to perform as some form of the Beach Boys, just not "The Beach Boys" as Mike already has that. Now if they offer BRI more $ than Mike is paying, they might vote to switch.  But that is presently quite unlikely (unless Brian tarts charging $1000 per ticket).

[SurfRiderHawaii]

I think we may be talking about two different things, or I maybe I don't get it. If you don't need a license for a fair use of the trademark then the license doesn't matter. I think Mike has an exclusive license but BAD may be able to use the name in ways without the license. I think that is what the court said, Al used the name in improper ways and also operated as if and claimed he had a license but it had not been approved or signed off on by BRI but presumably Al could use the name in proper ways without the license.  Or not.

Well, BRI has only licensed one "Beach Boys". If you want to look at it that way, it's exclusive. Legally, it's not. BRI could license Brian as "Brian Wilson's Beach Boys featuring ......" Every license is exclusive to it's own binding terms and conditions with certain stipulations. If you read the court docs, Mike's license has stipulations and a fee. As long as he abides by the terms of his license, he is good, (except BRI could vote to revoke it. Which I just don't see at this point).

Also, the terms of his license prohibit him from releasing songs and other works as the Beach Boys.

Mike would already have released a half dozen concert DVDs of his band if he legally could. Same with all the BB band recordings he did with Adrian Baker. His license terms don't allow releasing it as BB music.

I may not be following you but I still believe Mike currently has an exclusive license since the judgment which I believe excludes other licenses by BRI. Which BRI could change in the future as they have in the past.

Why do you believe that Cam?  It's all in black and white, legal in writing public record yada yada. Did you read the ruling?  It plainly states Mike's license is NON-EXCLUSIVE! And the last court action was 2003.  Check out the link and read it a few times.  Took me awhile to digest.

Just because some articles/interviews wrongly state Mike owns the legal rights to the name (which he doesn't) ?

[Cam Mott]

I know what it says about 2003 but somewhere I thought it was said later they changed the non-exclusive licenses back to an exclusive license for Mike. I don't remember were I got it, maybe that King interview with Brian mentioned, so maybe I'm wrong.

[Kurosawa]

I see what ORR is saying...that Mike has "The Beach Boys" name exclusively, but that Brian and Al could bill themselves as Brian Wilson and Al Jardine of The Beach Boys, or whatever, but they would have to pay a fee and Mike would get a part of the money just like Brian and Al do from Mike's shows. That seems like what the deal is, and that seems reasonable.

[SurfRiderHawaii]

I see what ORR is saying...that Mike has "The Beach Boys" name exclusively, but that Brian and Al could bill themselves as Brian Wilson and Al Jardine of The Beach Boys, or whatever, but they would have to pay a fee and Mike would get a part of the money just like Brian and Al do from Mike's shows. That seems like what the deal is, and that seems reasonable.

Exactly. Or they could conceivably outbid Mike for the license (that ain't happening).

But it seems they could bill themselves as original BBs as long as it didn't infer they ARE the BBs. Which is apparently what Al was referring to in the article. It's a squabhle about semantics.

[filledeplage]

I think we may be talking about two different things, or I maybe I don't get it. If you don't need a license for a fair use of the trademark then the license doesn't matter. I think Mike has an exclusive license but BAD may be able to use the name in ways without the license. I think that is what the court said, Al used the name in improper ways and also operated as if and claimed he had a license but it had not been approved or signed off on by BRI but presumably Al could use the name in proper ways without the license.  Or not.

Cam, I think that there was a provision about using "preferred promoters." And "confusion in the marketplace" is another issue if there are two bands using "Beach Boys" in the performing marketplace.

On the old Larry King interview with Brian and Melinda, they talked about "the BRI license" which sounds like one license. And, they said it went to Mike because he was "family." I wonder if it is on YouTube.  If I had to guess, it was probably around 2004 during the SMiLE promotion.  (I'm guessing.)

And, I'm thinking that Mike appears to have been acting in conformity with the "rules of the road" so that he looks on pretty firm ground, notwithstanding that other people have changed their positions.  And, now it seems that C50 was not a BRI production, even if the clothing and goods connected to the C50 tour bear the mark, they might have been exclusive to the tour as a condition.  And, it could have favored BRI for the sales of products, and the C50 entity for the tour.

It would be surprising if things changed.  

That is all part of the Jardine Family and Friends lawsuit/appeal.  BRI offered Al a license BECAUSE there would have been confusion, and loss of income without one. BRI  would have suffered a loss of income with Al using the Beach Boys name without paying a fee. As a matter of fact, that was one argument against Al in the appeal. Without Al paying a fee, there was/would be a loss of revenue.  BRI is a corporation and licenses a brand. They, the corp, doesn't care about competition to Mike's band so much as they care about maintaining, or increasing revenue.

Unless someone has some other documentation saying otherwise, there is nothing stopping Brian or Al from taking out a license to perform as some form of the Beach Boys, just not "The Beach Boys" as Mike already has that. Now if they offer BRI more $ than Mike is paying, they might vote to switch.  But that is presently quite unlikely (unless Brian tarts charging $1000 per ticket).

The original conflict arose out of the promoter, not being on "the list" and, the distribution formula amount of income.  And a dispute as to the necessity of permission to tour under other non-conforming conditions which were expressly set forth.  There was confusion as to whom would be the actual performers.  BRI got a permanent injunction. It was affirmed on appeal.

One point I'd analogize easily. If you go on eBay and in the search box, you put in "beach boys," you'll get the "primary" as well as the "secondary" sense.  You'll get a bunch if items like generic photographs of boys who "frequent a stretch of sand beside the sea." [footnote 3 of the case on findlaw] Then you'll get the "secondary" meaning being "descriptive, suggestive,   trademarked sense, of "music band-and it's members that popularized California surfing culture." And, the court said that meant even if he meant himself (Jardine) or the band.  Classic fair use did not apply [footnote 4] Classic Fair Use is only appropriate when the defendant has used "his own product" and not at all to describe the "plaintiff's product."

After you do this eBay search, you'll see our Beach Boys stuff, whether it is old BB concert tickets, LP's, new tickets mixed in with the generic boys on a stretch of sand.  And the court said that (referencing the NKOTB case) that "the nominative fair use defense acknowledges that 'it is often virtually impossible to refer to a particular product for purposes of comparison, criticism, point of reference or any other purpose without using the mark."

"Still the 'core element' is 'whether an alleged trademark infringer's use of a mark creates a likelihood that the consuming public will be confused as to who makes what product." And in the New Kids case cited, the nominative (name) fair use defense is only available if "the use of the trademark does not attempt to capitalize on consumer confusion or to appropriate the cachet of one product for a different one."

 Back to the generic eBay search; you can see where the search engine for eBay doesn't really know what you want; the "anonymous boys on any beach" or the ones from California who sing in a particular style, promoting girls/cars/surf/ - THE Beach Boys who belong to a "particular class" of individuals, and who have distinct characteristics.

There's a sort of payment for the use.  Mike assented to the terms, apparently as a "cost of doing business" as the Touring Band.  Al didn't go along with that "formula." It appears he made a rejection of terms and counteroffer, that was not accepted.  It is interesting, that there were things going on with BRI in the "Background" section of the case, with different terms emerging in 1991, 1993, and percentages relating to members who actually toured.  But, Mike was actually "licensing" from his own parent group, BRI.  And the dispute arose as to "whether BRI and Jardine entered into a non-exclusive license agreement." And if you read the background, you'll see the different terms. Paragraph 5 under Background of the case.

Many thanks to Oregon River Rider for posting the link and the Ivan Hoffman link to explain some of what it means.  

[Cam Mott]

I think I see what you guys are saying but I think that reflects the status around 2000, even before this opinion was written, I think it has changed since then as to the licenses. I assume they still have the right to use the trademark without the license in certain ways. I could be wrong and I guess we may find out.

[SurfRiderHawaii]

I think I see what you guys are saying but I think that reflects the status around 2000, even before this opinion was written, I think it has changed since then as to the licenses. I assume they still have the right to use the trademark without the license in certain ways. I could be wrong and I guess we may find out.

You keep saying this Cam but you have nothing to back it up other than being a huge Mike fan. The case dates to 2003 so no, things didn't change in 2000. You shouldn't claim things you can't back up. We have the case from the US Court of Appeals which is set in stone as far as we know. All indications are that BRI is operating in the same fashion. The C50 is a great example. BRI issued a new license for that purpose.

[Wirestone]

I think I see what you guys are saying but I think that reflects the status around 2000, even before this opinion was written, I think it has changed since then as to the licenses. I assume they still have the right to use the trademark without the license in certain ways. I could be wrong and I guess we may find out.

You keep saying this Cam but you have nothing to back it up other than being a huge Mike fan. The case dates to 2003 so no, things didn't change in 2000. You shouldn't claim things you can't back up. We have the case from the US Court of Appeals which is set in stone as far as we know. All indications are that BRI is operating in the same fashion. The C50 is a great example. BRI issued a new license for that purpose.

Can we agree that no one here knows? If we don't have the text of the license in front of us, we have no idea how it might works, or when it might have been revised. I was certainly under the impression that the non-exclusive license business ended after the legal mess with Al, and that there is a single license granted to Mike. But what that means, and how it plays out in reality, I've no idea. AGD would know, but I'm not sure if he's back among us yet.

[SurfRiderHawaii]

I think I see what you guys are saying but I think that reflects the status around 2000, even before this opinion was written, I think it has changed since then as to the licenses. I assume they still have the right to use the trademark without the license in certain ways. I could be wrong and I guess we may find out.

You keep saying this Cam but you have nothing to back it up other than being a huge Mike fan. The case dates to 2003 so no, things didn't change in 2000. You shouldn't claim things you can't back up. We have the case from the US Court of Appeals which is set in stone as far as we know. All indications are that BRI is operating in the same fashion. The C50 is a great example. BRI issued a new license for that purpose.

Can we agree that no one here knows? If we don't have the text of the license in front of us, we have no idea how it might works, or when it might have been revised. I was certainly under the impression that the non-exclusive license business ended after the legal mess with Al, and that there is a single license granted to Mike. But what that means, and how it plays out in reality, I've no idea. AGD would know, but I'm not sure if he's back among us yet.

I don't believe AGD knows as he has never indicated he has knowledge of the license wording. What we do know, for sure, is that the Court ruling states the license is non-exclusive. Which makes sense as a new license was issued for the C50. As proof we now have Mike bitching about how things were not done to his liking. If Mike has an exclusive license, he would have called all the shots on the C50.

[filledeplage]

I think I see what you guys are saying but I think that reflects the status around 2000, even before this opinion was written, I think it has changed since then as to the licenses. I assume they still have the right to use the trademark without the license in certain ways. I could be wrong and I guess we may find out.

You keep saying this Cam but you have nothing to back it up other than being a huge Mike fan. The case dates to 2003 so no, things didn't change in 2000. You shouldn't claim things you can't back up. We have the case from the US Court of Appeals which is set in stone as far as we know. All indications are that BRI is operating in the same fashion. The C50 is a great example. BRI issued a new license for that purpose.

Can we agree that no one here knows? If we don't have the text of the license in front of us, we have no idea how it might works, or when it might have been revised. I was certainly under the impression that the non-exclusive license business ended after the legal mess with Al, and that there is a single license granted to Mike. But what that means, and how it plays out in reality, I've no idea. AGD would know, but I'm not sure if he's back among us yet.

I don't believe AGD knows as he has never indicated he has knowledge of the license wording. What we do know, for sure, is that the Court ruling states the license is non-exclusive. Which makes sense as a new license was issued for the C50. As proof we now have Mike bitching about how things were not done to his liking. If Mike has an exclusive license, he would have called all the shots on the C50.

You can tell a lot about the structure of BRI and rules, from the case decision, as it sets forth some of the essential terms and conditions.  My inference of Mike's issues center around the "writing collaboration" with Brian and that might have been "an unfilled condition" of C50.  And, Mike would have "relied on that condition (writing with Brian)  to his detriment."

From what I have read it was Wilson-Love-Thomas.  Someone will surely correct me if I'm incorrect.  And, they, BRI, would have every right if business or income would be hurt or diminished if the current arrangement were to change.  That is a reason for a corporation.  In business, for profit.  It isn't political or arty.   

Only NEW issues could be litigated.  That case was affirmed at the higher level.  (Based on that linked case.)

Wasn't there a promoter towards the end of C50 that advertised the Touring Band as the C50 lineup?  Wasn't it cancelled? It caused "confusion in the marketplace" because the majority of people really don't know the difference.  Only the "higher end" fans!   

Sorry, I couldn't resist! 

[Cam Mott]

I think I see what you guys are saying but I think that reflects the status around 2000, even before this opinion was written, I think it has changed since then as to the licenses. I assume they still have the right to use the trademark without the license in certain ways. I could be wrong and I guess we may find out.

You keep saying this Cam but you have nothing to back it up other than being a huge Mike fan. The case dates to 2003 so no, things didn't change in 2000. You shouldn't claim things you can't back up. We have the case from the US Court of Appeals which is set in stone as far as we know. All indications are that BRI is operating in the same fashion. The C50 is a great example. BRI issued a new license for that purpose.

OK. I guess we'll find out sometime maybe.

[Nicko1234]

I don't believe AGD knows as he has never indicated he has knowledge of the license wording. What we do know, for sure, is that the Court ruling states the license is non-exclusive. Which makes sense as a new license was issued for the C50. As proof we now have Mike bitching about how things were not done to his liking. If Mike has an exclusive license, he would have called all the shots on the C50.

I don't think that part is true. At all.

If Mike had attempted to call the shots either in terms of recording the album or the make up of the touring group then Brian wouldn't have been involved and it would never have happened.

[SurfRiderHawaii]

I don't believe AGD knows as he has never indicated he has knowledge of the license wording. What we do know, for sure, is that the Court ruling states the license is non-exclusive. Which makes sense as a new license was issued for the C50. As proof we now have Mike bitching about how things were not done to his liking. If Mike has an exclusive license, he would have called all the shots on the C50.

I don't think that part is true. At all.

If Mike had attempted to call the shots either in terms of recording the album or the make up of the touring group then Brian wouldn't have been involved and it would never have happened.

Yeah, that was what I was saying. The 'operation' ran on new terms, new license.

[Pretty Funky]

I think we may be talking about two different things, or I maybe I don't get it. If you don't need a license for a fair use of the trademark then the license doesn't matter. I think Mike has an exclusive license but BAD may be able to use the name in ways without the license. I think that is what the court said, Al used the name in improper ways and also operated as if and claimed he had a license but it had not been approved or signed off on by BRI but presumably Al could use the name in proper ways without the license.  Or not.

On the old Larry King interview with Brian and Melinda, they talked about "the BRI license" which sounds like one license. And, they said it went to Mike because he was "family." I wonder if it is on YouTube.  If I had to guess, it was probably around 2004 during the SMiLE promotion.  (I'm guessing.)

 

Not on youtube but here is part of the transcript.

KING: How long were you a group?

 B. WILSON: From 1961 to 1998. Then we broke up after Carl died. Which is too bad.

 KING: And Mike, he has the group now, is that it...

 B. WILSON: He licenses the name, yes.

 M. WILSON: We licensed the name to Mike because he is actually the only one that really -- well, I shouldn't say the only one, Al would like to too, but we decided Mike would be the guy who...

 KING: So he takes the group out called the Beach Boys.

 M. WILSON: He's got some Bruce with him...

 B. WILSON: Bruce Johnston.

 M. WILSON: Yes. And the other ones I really don't know who...

 KING: But they go out and they have the license to use the name.

 M. WILSON: They have the license to use the name.

 KING: And you get a cut of what they do?

 M. WILSON: Yes.

 KING: So you get a percentage.

 M. WILSON: Mmm-hmm.