Wednesday, December 20, 2006


San Francisco, Calif. A federal lawsuit was filed earlier this week on Dec. 18, 2006 on behalf of such legendary Rock 'n Roll musicians and bands as The Grateful Dead, Carlos Santana, Led Zeppelin, and The Doors. The named defendant is a commercial website called "Wolfgang's Vault" which sells rock 'n roll memorabilia. (Grateful Dead Productions v. Sagan).

The lawsuit alleges in part that the defendant is violating the musicians proprietary rights including the right of publicity, trademarks and copyrights. One of the issues is whether the defendant should be allowed to profit from sales of memorabilia (concert posters, vintage t-shirts, etc.) purchased from the Estate of Bill Graham, the legendary concert promoter who died in 1991. The plaintiff musicians allege that the memorabilia at issue was promotional in nature and never intended for sale and that Graham never had the right to sell, reproduce or otherwise exploit this memorabilia. With each side taking positions that are diametrically opposed, this legal tussle will likely focus on the memorabilia at issue and each items status as either official merchandise or promotional material. The role of trademark protection again rears its head in this case and reinforces the value of maximizing the legal protection measures available. For more on the subtleties of maximizing trademark protection, our article on "Rock 'n Roll Trademarks: Selection, Clearance & Registration", is available online at our website at:

In any event, it is hoped that this case will result in a decision which will clarify the treatment of such pop culture memorabilia, which the Baby Boomer generation covets so dearly, and which in some cases may indeed be subject to continuing rights as claimed by the musician's herein when the items were promotional in nature, rather than official merchandise, and/or never the prior subject matter of a proper transfer of title.

To be distinguished, of course, is previously sold official memorabilia, which can be sold and resold pursuant to the Copyright Act's "First Sale" doctrine. Thus, your previously purchased lp's, cd's, and t-shirts can be sold on ebay to your hearts delight, if you can dare part with them. Just don't be scanning those album covers and trying to make a profit by selling such reproductions.

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