Trademarks and Trusts

Lawyers tend to enjoy internecine family dramas but there is something depressing about whatever is going on in the family of the late Frank and Gail Zappa.  Frank died in 1993; his widow Gail died last October.

Fans know that for years Frank's son Dweezil has been performing Frank's music worldwide under the name Zappa Plays Zappa.  However Zappa recently announced that he was being forced to change the name of his venture to Dweezil Plays Frank Zappa.  A quick search of the Trademark Office shows that the Zappa family trust owns one registration and two pending registrations for the mark Zappa Plays Zappa and it is assumed that the trust (which presumably benefits all four Zappa children but for which only two children serve as trustees) objected to Dweezil performing and selling merchandise under the trademark.  Dweezil himself has alluded to  the fact that when his mother was alive he had to pay her a hefty licensing fee to use the mark.

 The New York Times ran a story on this dispute which hinted that there may be even larger battles being fought.  Apparently the family trust has argued that bands performing entire performances of Zappa's music need a negotiated "grand rights” performance license rather than just relying on the standard blanket public performance license which all venues have.   Most experts agree that simply performing Zappa's works without a dramatic component would not require a grand right license but the article reports that the late Gail Zappa routinely tried to stop groups from performing her late husband's music without such a license. Is the Zappa Trust demanding a grand rights license from Dweezil?

 I personally admire Dweezil Zappa for keeping his father's music fresh and alive and while I always find the intersection of trusts and estates and intellectual property fascinating, I cannot help but be saddened by the toll all of this is probably taking on the Zappa children.

The Captain Beefheart Trademark Question

            I am a practitioner of trademark law and I can attest  that it is often a sea of angst and confusion.  I'm also a fan of both the late Captain Beefheart and the late Frank Zappa … there's a little bit of angst and confusion there as well.

            Thus, I am fascinated by the fact that Zappa's widow Gail just secured a notice of allowance on her intent to use application for the trademark "Captain Beefheart" (Serial No. 85695177).  (I have written about Gail Zappa before: http://tripaldredgelaw.blogspot.com/2012/12/selling-zappa.html).

            Ms. Zappa is seeking registration in several U.S. classes that include everything from "audio and video recordings" to "electronic games software"  to “sunglasses”. (Captain Beefheart sunglasses  ?  Cool!).

            I don't claim to know the whole complicated history between Don Van Vliet  (p/k/a Captain Beefheart) and the Zappas.  I know that Don and Frank were high school friends, I know that Zappa released  Trout Mask Replica and I know that there was some legal wrangling over the original master  recordings to the album  Bat Chain Puller which was recorded in the 1970’s but which went unreleased until 2012.

            I can't tell how Zappa would have acquired the rights to the trademark in sound recordings  and other classes for the Captain.  California has a very good right of publicity statute which would seem to give Vliet’s  heirs a right to exploit his name, image and likeness after his death. What about all of the other Beefheart  recordings that were released on labels other than those controlled by Frank Zappa?

            There may be a simple explanation to all of this and the explanation may be that it is none of our business.  Or it may be one of those interesting areas where the laws of intellectual property and state  property and probate laws intersect.  Stay tuned.

Selling Zappa

            As anyone who has read my little blog over the past few years knows, I have a real interest in alternate methods of music distribution.  I also have a professional interest in crowd-sourced funding, since many clients of mine have experimented with it to various degrees.  Finally, I am a huge fan of Frank Zappa, for many different reasons.

            So, I was fascinated with the recent announcement from Frank’s widow, Gail Zappa of a new distribution concept intended to raise approximately $1,000,000.00 needed to complete a video release of Frank’s 1973 concerts at the Roxy Theater in Los Angeles.  Apparently these shows were professionally filmed as well as recorded (Zappa fans know the original album “Roxy and Elsewhere”).

            Gail has asked “1,000 highly motivated sensitive and discerning individuals” to become distributors of the audio soundtrack of the concert.  According to Gail’s press release those individuals who contribute $1,000.00 to the Zappa Family Trust have the right to distribute the recording of the concert however they see fit, except that these so‑called distributors have to pay the trust mechanical royalties and report their sales to them.

            This concept is interesting but fatally flawed.  In this environment of internet piracy free‑for‑all (probably imagined by Frank at some point) there is no way that the patrons of this cause are going to make any actual money selling the recordings and if they do, the average fan is going to be ill-equipped to know how to go about reporting and paying mechanical royalties.  Hell, it’s difficult enough to get record companies to do this. What happens if they don’t pay? Does the Zappa trust sue them?

            I may be wrong, there may be 1,000 Zappa fans worldwide who will pay $1,000.00 for the privilege of being an exclusive Zappa distributor and if so this is the apex of the crowd funded money raising model but I don’t think that will be the case.

            Still kudos to Gail Zappa for trying something new.  It’s nice to see that Frank’s legacy as an iconoclast lives on.