Vandals Vs. Variety

The dust-up began in 2004 when Variety parent Reed Elsevier sent a cease and desist order to the band over the use of the magazine’s green font and logo on the cover of its 10th album, Hollywood Potato Chip. On its website, the band says it is artistic fair use under the First Amendment as well as copyright law.

But rather than tackle the company’s high-powered law firm of Fulbright & Jaworski, the band opted to settle – including removing the offending artwork from future pressings and materials. Part of the agreement was a stipulation that any breach could cost the band up to $50,000 plus attorney fees.

However, in April, Reed Elsevier filed papers in Delaware federal court claiming such a breach because the image managed to reappear on a third-party website for the band and its label, Kung Fu Records. The band argues it had no part in the image’s appearance and that it wasn’t given the opportunity to attempt to halt its use.

By the time the Vandals received the C&D, the images were – outside retailers like Amazon, Borders and Best Buy – nowhere to be found on the web. But Fulbright & Jaworski reportedly insisted on the payment plus fees.

Enter Escalante. He’s a Loyola Law School grad and member of the California bar who once reportedly worked in legal affairs for CBS before joining the band.

“They filed a case … after first demanding a bunch of money and weird things for us to agree to,” Escalante told OC Weekly. “They weren’t able to prove if there were forbidden images that we were under control of. So [Fulbright & Jaworski] just said, ‘Well, OK. Then give us the money anyway.’”

The Vandals chose to fight back this time, with Escalante taking the case pro bono.

“The best deal the Vandals could get on a Delaware Attorney was Ashby & Geddes who offered to take the case if the Vandals would just place $20,000 in an escrow account for them and pay them $520 per hour with none of this being applied against the $20,000 escrow money,” the band posted on its website.

“So the Vandals decided to represent themselves, since they had no other options. Since Kung Fu Records is a Corp. it cannot represent itself so Vandals bassist Joe Escalante filed a motion with the Court to allow him, an attorney accepted to practice in California, to be accepted to practice in Delaware for the sole purpose of filing the motion to transfer venue back to California. Of course Daily Variety has since filed papers to oppose this motion.”

And because the case was filed in Delaware, that’s not cheap – even if your lawyer is working pro bono. The Vandals have played benefits for its legal defense fund, including one Sept. 10 at the Glass House in Pomona, Calif., recorded protest songs for an upcoming EP and plan a music video and documentary, according to the Weekly.

And Escalante is ready for action, saying the suit against his band proves that “you’re only as free as how much money you have.” The band’s battle against Variety is laid out in full detail at the band’s website, including a repository of court documents.

“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,” Escalante told the Weekly. “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.”

Click here for the complete OC Weekly article and here for The Vandals’ website.