3.12.09 BETCHA GOIN PHISHIN

Depending on what tribe you run with, you may know that the band Phish played their first shows in over five years last weekend down in Hampton, Virginia. Over the past couple years I’ve gotten quite an education about Phish fandom through my working on the development of the book PhanArt: The Art of the Fans of Phish, compiled and just published by my client Albanian Pete Mason. The book collects fan-generated art, most of it stuff that was sold and traded in the parking lots and fields surrounding Phish concerts and festivals in the years prior to the band temporarily calling it quits in 2004.

The book is a 420 (!!!) page dizzying collection of pop, appropriation, and, in some cases, flat-out fine art that speaks to the band’s deep subculture and the peculiar mass obsession that fuels it.

So it was with more than a casual interest that I watched the goings-on in Hampton over the weekend. On Thursday I got a fairly freaked-out message from Pete that the local papers were reporting that lawyers for Phish were in court seeking a seizure order for counterfeit goods being sold at or near the concert venue. Was this the portent of some very un-Phish-like bad vibes?

Well no, it wasn’t. Getting orders like this is standard operating procedure for many big touring outfits like Phish. Even the most groovy of groups protect their trademarks (and their authorized merchandise vendors) from counterfeiters, and one very effective way of doing this is by getting a prospective seizure order from the local federal court that allows the U.S.Marshals to authorize the band to police what is being sold around the venue. Back when I was clerking for Judge Cholakis in federal court in Albany, similar orders were granted for the Grateful Dead (the grand pooh-bahs of grooviness) and other major acts coming to town.

It’s never a perfect system. The folks doing the street policing are typically not schooled on the nuances of trademark law, so along with seizing the obviously counterfeited goods (t-shirts that are blatant rip-offs of official band merch, or that feature registered trademarks of the band) sometimes more innocuous stuff that doesn’t infringe anything, gets seized as well. I remember getting calls in 1991 from a furious independent t-shirt vendor (now a prominent Albany attorney) who had his inventory of totally legal shirts seized by over-zealous Dead trademark cops outside the Knick.

What made the Phish situation different was the public announcement, perhaps made to warn would-be counterfeiters to stay away. As fate would have it, the judge rejected the application, because (a) the public announcement violated the statute that provided that applications for seizure orders were supposed to be made in secret under seal, and because (b) the Phish lawyers failed to serve the local U.S. Marshals with the application, again as provided in the statute. The news reports from Hampton indicated that the judge was pretty angry about this, and that the hearing wasn’t particularly pleasant.

D’oh! My first thought was “there but for the grace of God go I.” Getting reamed by a judge in open court, deserved or not, is no fun. I got slammed once in a packed courtroom for failing to put page numbers on a six-page brief. It was awful, and I’ll never forget it, and I’ll never forget page numbers on a document again. Now, I even put a “1” on the bottom of a one-page document.

What happened in Hampton? I’m guessing that the Phish lawyer was doing business as usual, and ran into a judge that refused to allow any cutting of corners. Like I said, the public announcement, while maybe not consistent with the “under seal” requirement of the law, had a laudatory intent, to avoid ugly street confrontations with would-be counterfeiters in the middle of what was sure to be a crazy scene outside the concert venue. Not serving the U.S. Marshalls may have been an oversight, but the requirement strikes me as ministerial—it’s not like the Marshalls are going to oppose the application.

But anyway, the whole episode didn’t appear to indicate the long (albeit sometimes tenuous) relationship Phish has had with the dozens, maybe hundreds, of street artists that sell band-related (but non-infringing) art and merchandise in the parking lots, fields, and hotels around the concert venues. These artists generally know the rules, and some of their efforts to push the boundaries (like hiding and disguising Phish logos and trademarks in a design or artwork) resultin some of the most clever and interesting fan-generated works. And Pete tells me that new stuff was selling like crazy in the lots at Hampton all weekend long.

And if there’s any lingering questions whether Phish maintains reasonable and fan-friendly intellectual property policies, they posted high-quality recordings of all three of the Hampton shows for free download at livephish.com. ‘Nuf said.