Question on BRI and Corporate votes

[SurfRiderHawaii]

But AGD, isn't there more to it than that.  Al can't get a license to tour as the Beach Boys, Brian, David and Al can't tour as the Beach Boys.  So in effect, the license was issued for Mike to tour as the Beach Boys?  Mike sued Al for touring as BB Family and Friends.

If Alan adhered to the terms of the BRI license, he could tour as The Beach Boys (in principle - in reality I just cannot see that happening: cue legal fireworks). Back in 1998, he didn't, and that's when the sh*t hit the fan, repeatedly. And it was BRI who sued Alan (thus he was, strictly speaking, suing himself !), not Mike.

I think the questions people, like me, want to know is:

1. Is there a time limit on Mike's license?
2. Can it be revoked by a BRI vote.
3. Can a license be issued to "Brian, Al and David" to tour as the Beach Boys?

When you say amended, do you mean that, say for example, that the band has to tour with atleast two, or three, original members? (so Bruce wouldn't count).

1 - not that I'm aware
2 - probably, but the income stream would be turned off. You see that ever happening ?
3 - yes, if they adhere to the existing rules. But why would they ?

Er, where did I say "amended" ?

Thanks for the clarification AGD!  No, I wouldn't turn off the income stream.  Seems Al wants to stay in the band.  Does Brian want to keep touring year round?  Doubt it.

Well, it be just like the Beach Boys for Brian, Al and David to go out as the BBs and then Mike sues them.  A fitting end to the saga of 'The Heroes and Villeins".
**************
My bad, I interchanged 'amended' from "terms of said license aren't revised"

Personally, I could care less about the whole thing except I think that if David, Al or Brian want to tour with the band, they should be allowed to do so. 

I am just waiting for the boxset and all  the discussion and analysis of the the tracks by you and the board members.

[southbay]

Interesting in reading the actual case decision that it was "the representative of Carl Wilson's estate" that suggested at the July 1998 BOD meeting that BRI issue non-exclusive licenses to the members so that they could all tour on equal terms. I wonder who the representative was, and interesting that even after his death Carl's estate continued to act as the mediator of sorts. The case also states that the vote on that proposal was 3-1 in favor of issuing the non-exclusive licenses.  Presuming Love was the dissenting vote? Apparently Love was also the only member who actually applied for and received a non-exclusive license, which then terminated under the terms of said license on 12/31/99.

[Cam Mott]

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I guess we could just copy our debates from circa 2000 regarding all of that BB name business. But to suggest Mike was getting "jerked around" is kind of silly. First of all, as we've been told so many times, the legal action was from BRI, not Mike personally. So if Al and Brian were "jerking" anybody around, it was their own BRI company. Similarly, if BRI "jerked" the license from Mike, that was BRI, not any one person.

Another little bit that I'm sure I ended up arguing years ago is that, if Al was offered cheaper/better terms for a license, that would have made sense since he was not calling his band "The Beach Boys", and I don't believe Al ever attempted to go out with a competing band with the exact same name as Mike's "Beach Boys."

Not that it matters (as I often say  ), but I don't think there is any scenario where we would have seen two bands going out as "The Beach Boys" simultaneously, and by mutual agreement. That's why I don't buy that Brian and Al could just go out right now as "The Beach Boys" if they simply abided by terms of an agreement made with Mike.

It's not silly at all. Mike got jerked around over the license by his co-board members in BRI. Mike did nothing but abide by his agreement and the others did nothing they agreed to until after Al thumbed his nose at them for their trouble which they had made Mike's trouble.

Adding words after a trademark has no effect on use of the trademark. Use of the trademark is use of the trademark. I can't market my cola as "Pepsi and Ice" and expect Pepsico not to object to my use of their trademark amongst my words. It is still trademark use at full value. Besides Al had agreed to abide by the agreement to use the trademark. He doesn't [and didn't] get a pass because it is self-serving.

BRI could do that and already have when they unsuccessfully tried to help Al nonexclusive licenses at Mike's exclusive licnese's expense. Because of Al there is now only an exclusive license held by Mike. BRI could change that because they already did when they jerked Mike around over the nonexclusive licenses while unsuccessfully trying to appease Al.

We'll just continue to disagree because there is no way Al is the good guy or the victim in this particular situation imo.

[HeyJude]

It's not silly at all. Mike got jerked around over the license by his co-board members in BRI. Mike did nothing but abide by his agreement and the others did nothing they agreed to until after Al thumbed his nose at them for their trouble which they had made Mike's trouble.

Adding words after a trademark has no effect on use of the trademark. Use of the trademark is use of the trademark. I can't market my cola as "Pepsi and Ice" and expect Pepsico not to object to my use of their trademark amongst my words. It is still trademark use at full value. Besides Al had agreed to abide by the agreement to use the trademark. He doesn't [and didn't] get a pass because it is self-serving.

BRI could do that and already have when they unsuccessfully tried to help Al nonexclusive licenses at Mike's exclusive licnese's expense. Because of Al there is now only an exclusive license held by Mike. BRI could change that because they already did when they jerked Mike around over the nonexclusive licenses while unsuccessfully trying to appease Al.

We'll just continue to disagree because there is no way Al is the good guy or the victim in this particular situation imo.

I think it boils down to the idea that I don't think Mike was a victim. He was in a position of more power, if for no other reason than "getting there first" with his license and having a ready-to-go touring band. Al and Mike didn't just split up and build bands and touring operations from the ground up. Mike basically continued the same operation, just without Al. There is evidence that Al saw this coming for a number of years, and it's either a testament to his inaction, or his lack of power in the matter, that he didn't do anything about it sooner. I'm guessing it's much more the latter. According to the Peter Ames Carlin BW biography, Mike was trying to oust Al from the band as early as 1990.

I agree that we will just continue to disagree.  

I will add regarding the naming/license issue that BRI was considering granting a license to use the BB trademark, but was doing so under a proposal to call it "BBFF", and I think that was the only reason anybody would have even entertained "non exclusive" licenses. Yes, any use of the trademark is the same in the most basic sense of trademark law. But in terms of BRI being willing to grant non-exclusive licenses, I think it only would have been done with the idea of two bands going out with at least somewhat different names and at least slightly different concepts. The fact that they were willing to entertain "better" licensing terms for Al is, simply in my opinion, not just an example of BRI just going out of their way for Al's sake, but of recognizing that a licensing agreement where it is agreed to use an *altered* version of the band's name is something that should result in lower licensing fees.

Considering how much the legal paperwork cites "confusion" among venues/promoters (ironically, similar to what Mike just experienced with the "Nutty Jerry's" debacle), I don't buy that Al would even been allowed to continue with the "BBFF" name on a permanent basis even with a license. It would have fizzled for one reason or another.

[Cam Mott]

Al helped draft the requirement and agreed to abide by the 20% requirement first then tried to negotiate the fee down to 5% contravening the original requirements and agreement he helped draft as a condition of having a nonexclusive license and only proposed the trademark with additional words name change as a last resort loophole [after he wasn't going to get a license] through which he claimed he wouldn't need a license at all to use the trademark.

Al didn't get to continue with the band because he had already quit, supposedly to record an album with his sons, and because he had tried to arrange a post-Carl's death concert or something with Brian which Brian didn't want to do and because Brian didn't want to do it Mike didn't either and Al tried to go behind Mike's back and arrange it anyway using Peter Cetera as Mike's replacement. Brian wanted Mike to have the band and the trademark with the exclusive license and Carl's estate intervened when Al  threatened a lawsuit over the exclusive license Brian wanted Mike to have.  Al is a victim of only himself and the rest of BRI was also the victim of Al.

That's what I've heard, anybody know different?

[tpesky]

Cam, While certainly I'm not saying Al was a total victim, I'm not going to make Mike a martyr either, I believe Al had to fight in court to be able to call himself a Beach Boy!! That is a huge injustice! As always, it takes two to tango...

[Cam Mott]

Is it? Al voted for the use of the trademark name by original members of the band to require a license with certain conditions to be met and set fees to be paid when he thought it was Mike being required to do it and again when he thought Mike, Brian and himself would be required to do it.  So did he suddenly decided it was a huge injustice to be required to do what he required to be done only when it was required of him? Justified for Mike or Brian but not justified for Al if he has to live up to his own prearranged conditions? 

Ok, I'm going to have to move on, apparently not many share my view.

[Nicko1234]

Reading the judge`s comments it seems pretty clear that things turned out as they ought to have done.

It is right that Al could refer to his past membership of the band `in a descriptive fashion`.

It`s also right that he was banned from using the Beach Boys name as he was too cheap to pay for it. Al indeed does come out as the villain of the piece at that time.

A real shame as Al essentially wasted a whole decade where he could have been performing as himself to smaller crowds and maybe winning some new fans.

[Joshilyn Hoisington]

Reading the judge`s comments it seems pretty clear that things turned out as they ought to have done.

It is right that Al could refer to his past membership of the band `in a descriptive fashion`.

It`s also right that he was banned from using the Beach Boys name as he was too cheap to pay for it. Al indeed does come out as the villain of the piece at that time.

A real shame as Al essentially wasted a whole decade where he could have been performing as himself to smaller crowds and maybe winning some new fans.

I think the courts have gotten everything right that has come before them, when it comes to Beach Boys-related litigation.

[HeyJude]

Al helped draft the requirement and agreed to abide by the 20% requirement first then tried to negotiate the fee down to 5% contravening the original requirements and agreement he helped draft as a condition of having a nonexclusive license and only proposed the trademark with additional words name change as a last resort loophole [after he wasn't going to get a license] through which he claimed he wouldn't need a license at all to use the trademark.

Al didn't get to continue with the band because he had already quit, supposedly to record an album with his sons, and because he had tried to arrange a post-Carl's death concert or something with Brian which Brian didn't want to do and because Brian didn't want to do it Mike didn't either and Al tried to go behind Mike's back and arrange it anyway using Peter Cetera as Mike's replacement. Brian wanted Mike to have the band and the trademark with the exclusive license and Carl's estate intervened when Al  threatened a lawsuit over the exclusive license Brian wanted Mike to have.  Al is a victim of only himself and the rest of BRI was also the victim of Al.

That's what I've heard, anybody know different?

I do recall a bunch of stuff going around about doing a show with Peter Cetera, and Al himself did discuss doing symphonic shows with Brian and whatnot. But correct me if I'm wrong, but I don't think the court documents go into any of that, nor does it stated explicitly that Al "quit" the band.

Based on what we've been told of that 1997 timeframe where business arrangements concerning the production company running BB tours were causing consternation, and Al not being told about David rejoining the band and then, as reported in Jon Stebbins' book, walking off in a huff after learning that Dave was back full time and saying something along the lines of "well that's it, it's all over", all of that suggests to me that the situation deteriorated and Al was forced out. There is also that vague comment in Carlin's book about Mike attempting to oust Al in 1990. None of this paints a picture you're describing of Al "victimizing" others and himself and arbitrarily quitting the band. I have no doubt Al made plenty of bad decisions too, but this casting of him as the true villain in this chapter of their story is silly.

Even the court documents state Al and Mike didn't want to work together (which is kind of an oversimplification, but only to those who care about the interpersonal minutae), not that Al "quit" the band.

Regarding what exactly Al wanted to call his band or what he intended to negotiate, I've seen no evidence that he ever intended to tour under the name "The Beach Boys." He may have negotiated a license to do that in order to do what he actually wanted to do, but I've seen nothing to indicate he wanted to go out and compete with Mike under the same exact name, and as I mentioned before, I find it hard to believe BRI would have wanted that.

[HeyJude]

Is it? Al voted for the use of the trademark name by original members of the band to require a license with certain conditions to be met and set fees to be paid when he thought it was Mike being required to do it and again when he thought Mike, Brian and himself would be required to do it.  So did he suddenly decided it was a huge injustice to be required to do what he required to be done only when it was required of him? Justified for Mike or Brian but not justified for Al if he has to live up to his own prearranged conditions?  

Ok, I'm going to have to move on, apparently not many share my view.

What Al was attempting in at least one part of the lawsuit was something that can but doesn't always work in the legal realm, and that is to do the sort of having your cake and eating it too argument. He was arguing in part that he had a license, and was also arguing that using the "BBFF" name didn't require a license because of *how* he was using the BB trademark. So he was basically saying he didn't need a license, but as a backup, incase anyone questions whether he needs one, he also had one. This legal concept does work in some cases. But whatever license he may have had expired anyway, so that part of the argument didn't matter.

He made an attempt to argue that the "BBFF" name was okay based on previous case law (Playboy playmates billing themselves using the "Playboy" name, etc.). That argument failed. But he was presumably arguing a legal point that he believed in. That doesn't neccesarily mean he's "victimizing" others.

[ontor pertawst]

Well, other than that white slavery ring he had going for a while in 1999-2000.

I think we need to revise all Beach Boys mythology to cast Jardine as the mustache-twirling, ultra-litigious villain. The real reason Smile was never completed: Al shoved VDP down a flight of stairs.

[HeyJude]

Reading the judge`s comments it seems pretty clear that things turned out as they ought to have done.

It is right that Al could refer to his past membership of the band `in a descriptive fashion`.

It`s also right that he was banned from using the Beach Boys name as he was too cheap to pay for it. Al indeed does come out as the villain of the piece at that time.

A real shame as Al essentially wasted a whole decade where he could have been performing as himself to smaller crowds and maybe winning some new fans.

I think it was more than not being willing to pay to use the BB name. Arguments were also made that the "BBFF" name was confusing concertgoers and promoters/venues. That's why I think the whole issue of paying for a license, and going out as "BBFF", was a non-starter early on, as even if Al had abided by whatever terms BRI wanted him to, they would have eventually started fighting that out too and telling him that a second "Beach Boys", or even just a second band called "BBFF" wouldn't work. They were pretty active early on in trying to prove that people were "confused" by Al's "BBFF" name.

As for Al wasting the decade, that's true, and a shame. He should have been doing small, solo shows instead of booking sporadic oldies shows with Dean and whatnot.

[Joshilyn Hoisington]

A big part of trademark infringement, which is what a lot of this boils down to, is indeed this "confusion" standard.  Would Al using the name as he was confuse people?  I don't recall the specifics under the Lanham Act, but there might not even need to be actual confusion, just the possibility of confusion.

Also, keep in mind that the legal parties are not necessarily actual reflections of the individuals.  Yes, Al wanted to do things a certain way, but it's then the lawyers that figure out how to do it and what tack to take.  I mean, obviously there are hard feelings at times, but I do think the boys themselves are a step removed from the action.

[Rocker]

It would be interesting to know if something new was arranged when they all met at court a few years  (2?) ago

[HeyJude]

A big part of trademark infringement, which is what a lot of this boils down to, is indeed this "confusion" standard.  Would Al using the name as he was confuse people?  I don't recall the specifics under the Lanham Act, but there might not even need to be actual confusion, just the possibility of confusion.

Also, keep in mind that the legal parties are not necessarily actual reflections of the individuals.  Yes, Al wanted to do things a certain way, but it's then the lawyers that figure out how to do it and what tack to take.  I mean, obviously there are hard feelings at times, but I do think the boys themselves are a step removed from the action.

Good point about the lawyers. I refer back to the link I posted describing how Al sued one of his lawyers at some point for malpractice.

Back to the "confusion" issue, those court documents are interesting in that they show that Al was offered a license, and/or a license for multiple bands was considered at some point. Yet, there are also numerous mentions of confusion regarding the two bands being out there. That's why I'm so interested in the idea that, had Al abided by whatever terms BRI offered, he could have or would have continued to tour either under the "BBFF" name or also just called his band "The Beach Boys." This is again where I think a lot of the consternation over this was moot, because there's no way we would have had two bands called "The Beach Boys" touring throughout the 2000's. BRI would have eventually arrived at issuing an exclusive license anyway.

My total guess is that Al probably knew this, which is why he tried to argue that he didn't need a license. Yes, that also would have had the added benefit of not paying a licensing fee.

[Nicko1234]

I think it was more than not being willing to pay to use the BB name. Arguments were also made that the "BBFF" name was confusing concertgoers and promoters/venues. That's why I think the whole issue of paying for a license, and going out as "BBFF", was a non-starter early on, as even if Al had abided by whatever terms BRI wanted him to, they would have eventually started fighting that out too and telling him that a second "Beach Boys", or even just a second band called "BBFF" wouldn't work. They were pretty active early on in trying to prove that people were "confused" by Al's "BBFF" name.

As for Al wasting the decade, that's true, and a shame. He should have been doing small, solo shows instead of booking sporadic oldies shows with Dean and whatnot.

I agree with you that Mike would obviously not have wanted Al to tour as BBF&F at all even if he had been paying up. Mike`s attitude is pretty straightforward to that and not that illuminating. I think the face that Brian and Carl`s estate stopped Al from touring is much more interesting. They had allowed Al to tour and given him better terms than Mike and yet still Al wasn`t willing to pay up. If he had paid up and had been abiding to BRI`s rules then Mike may well still have gone to court. He probably wouldn`t have won though...

[Cam Mott]

Yeah that Al was a peach, it must have been a pleasure doing business with him.

[tpesky]

No one's saying Al was perfect or a "peach". No doubt he can be a pain in the neck to deal with as can Mike as can anyone in the group. The court got right that Al should be able to refer to HIMSELF as a Beach Boy and should not have been touring without a proper license. He screwed up there.  It was a tough situation. Mike no doubt did some things to give Al a little push out of the band. Jeez you'd think he gave Carl cancer at the rate you're going.

[drbeachboy]

Isn't it great that we act just as petty as the bandmembers we love.

[Cam Mott]

Yeah that's where I'm going.

It was a straight forward situation, then a situation made tough by Al.

[HeyJude]

Yeah that's where I'm going.

It was a straight forward situation, then a situation made tough by Al.

It certainly wasn't a straight-forward situation in Al's view, whether one agrees with him or not. He saw his ousting coming for some time, and in later interviews referred to being amazed how Mike pulled the whole thing off. Yes, it's all colorded by Al's view of things. But just becuase it was a "straight forward" situation financially/contractually, etc., it doesn't mean people didn't feel slighted and in some cases felt they were legally being wronged.

I just think this painting of Al as some kind of s***-disturber doing it just for kicks is wrong. He disagreed with how things were going, right or wrong, and the courts made decisions on those issues. I don't think Al was ever found guilty of filing frivolous claims or anything.

[drbeachboy]

Plus, finding out that you are out of the band by watching Mike, Bruce & David performing at the pre-Super Bowl party, could leave a foul taste in one's mouth. Bad blood was mounting way before the licensing agreement stuff took hold.

[HeyJude]

Plus, finding out that you are out of the band by watching Mike, Bruce & David performing at the pre-Super Bowl party, could leave a foul taste in one's mouth. Bad blood was mounting way before the licensing agreement stuff took hold.

Yeah, it's all part of that big picture. As we've subsequently learned, the actual appearance at that show may have been a surprise, but Al already knew what was likely happening by that point.

[SMiLE Brian]

Plus, finding out that you are out of the band by watching Mike, Bruce & David performing at the pre-Super Bowl party, could leave a foul taste in one's mouth. Bad blood was mounting way before the licensing agreement stuff took hold.

Yeah, it's all part of that big picture. As we've subsequently learned, the actual appearance at that show may have been a surprise, but Al already knew what was likely happening by that point.

The SIP era really kicked off the 1990s feuding between Mike and Al.