Dream Street Suit Never Part Of Silly Claims Of Endangerment
The final decision handed down by the Supreme Court of the State of New York on Wednesday outlines how and why Dream Street Entertainment won the case against the group’s members and parents — except for Chris Trousdale. Read on for the text of the decision, courtesy Yahoo! group Dream Street Truth.
Final Decision, August 7, 2002. Index 116936/00
Supreme Court of the State of New York — New York County
DIANE A. DEBEDEFF, J:
Page 1, Line 7 starts:
“Although both sides consent to end the future professional
relationship between these three young men and the producer-manager,
as stated on the record, each side asks to be permitted to retain
rights to the group name and the right to perform together under that
name, which are significant rights in the music and recording
industry.”
What was the OSC about?
Most importantly, there was no issue that the guys could leave. Jesse
had already left, so the action was a disagreement between “three
young men and the producer-manager”.
Louie had already agreed to release the kids, and that is what is
meant when the court says “both sides consent to end the future
professional relationship between these three young men and the
producer-manager”
The three young men asked to “to be permitted to retain rights to the
group name and the right to perform together under that name”, which
means that they wanted to continue to pretend that they were Dream
Street. So, they claimed that Louie was a pervert, not because they
were afraid he would do anything to them, but “to be permitted to
retain rights to the group name” and “to perform together under that
name”. That’s all they wanted. That’s all this OSC was ever about —
not some silly claims of “endangerment”.
Final Decision, August 7, 2002. Index 116936/00
Supreme Court of the State of New York — New York County
DIANE A. DEBEDEFF, J:
What is Dream Street?
Page 2, Line 5 starts:
“This success was not merely fortuitous. Dream Street is a “concept
group” created by a manager-promoter who hired performers to play the
roles in the group and directs its performance, much like Menudo, the
Monkees and the Spice Girls. In this case, Dream Street
Entertainment, Inc., was the organizer, promoter and manager, and was
responsible for the group’s style and characteristics. As
acknowledged in the contracts signed by these parents and the
promoter which were approved by the court, Dream Street
Entertainment, inc. (“Producer”), “conceived of” and “created” a
group known as “Dream Street” and seleceted the five teenagers
originally making up Dream Street, the agreement between the parents
of these three teenagers and the Producer acknowledged that, even if
any youth or youths were to depart from the group, the
Producer “shall continue to own all rights, title and interests in
the name Dream Street, at all times, solely and exclusively,
including all associated trademark and trade name interests.”
(Exclusive Services Agreement, article I[b], approved by order of
September 8, 2000, Weisberg, J.) It stands unrefuted that the
Producer expended over two million dollars to create, produce and
promote the group, from the Producer’s first open call for
prospective members of the group in November of 1998, through the
selection and training of group members, and to date. The rights of
the Producer exetnd somewhat beyond the term of the recording
contract (Exclusive Services AGrement, article 4[a]).
“In this case, Dream Street Entertainment, Inc., was the organizer,
promoter and manager, and was responsible for the group’s style and
characteristics” means that everything from the clothes to the
dancing to the music and singing styles were created by DSE as the
property of DSE.
Because Louie’s creation was so valuable, even the parents and their
kids agreed in writing that the “three teenagers and the Producer
acknowledged that, even if any youth or youths were to depart from
the group, the Producer “shall continue to own all rights, title and
interests in the name Dream Street, at all times, solely and
exclusively, including all associated trademark and trade name
interests.” The kids and their parents agreed that the whole creative
concept was 100% Louie’s.
The court continues that “the Producer expended over two million
dollars to create, produce and promote the group, from the Producer’s
first open call for prospective members of the group in November of
1998, through the selection and training of group members, and to
date”, which means that from the first day in 1998 until August 7,
2002, every creative decision concerning Dream Street has been made
by and is the intellectual property of Louie Baldonieri. The kids and
their parents are given no credit for any creative aspect of their
performances, and that it the Judge’s conclusion based on all of the
evidence.
Final Decision, August 7, 2002. Index 116936/00
Supreme Court of the State of New York — New York County
DIANE A. DEBEDEFF, J:
Where was Jesse? Why does it say the three group members?
Page 3, Line 1 starts:
This proceeding primarily concerns three group members, i.e., Frank
John Galasso, Matthew Ballinger and Gregory Raposo. Christopher Pask,
known as Christopher Trousdale, remains as the lead singer and does
not desire to leave Dream Street. Jesse McCartney resigned from the
group to pursue other highly attractive opportunities and is found to
lack standing to join in this application.(1)
Footnote (1): “Jesse McCartney’s resignation was confirmed by several
letters from an attorney representing him. His attorney’s most recent
withdrawal letter was dated March 1, 2002, and was accepted by the
Produer on March 26, 2002, prior to his mother’s execution of an
affidavit on April 8, 2002, purporting to request that he be releaed
from the agreement at issue. Because his resignation was repeatedly
tendered and accepted, the court determines that there is a want of
standing as to the request purportedly submitted on his behalf on the
grounds raised”.
WHERE’S CHRIS
The most important part of this section is that it clarifies the
rumor that Chris has wanted to leave the band. The court sees Chris
as the “lead singer” and notes that he “does not desire to leave
Dream Street”. Chris does not and never did desire to leave Dream
Street. He remains its lead singer.
WHERE’S JESSE
Jesse resigned from Dream Street most recently on Mach 1, 2002. But,
the fact that he could leave and go on to other things wasn’t good
enough. His mother filed paperwork on April 8, 2002, saying that he
wanted to leave the band. It’s not very honest to leave a band on
March 1, and then wait 37 days to say “they won’t let me leave”. He
had already left, and the court would not let Jesse be part of the OSC
Final Decision, August 7, 2002. Index 116936/00
Supreme Court of the State of New York — New York County
DIANE A. DEBEDEFF, J:
Who can and can’t use the name Dream Street?
Page 3, Line 6 starts:
“Given that there is no dispute that these three musicians are free
to leave Dream Street, the first critical isue is that they and their
parents, apparently with the support of their personal managers,
request that they be able to continue to use the name Dream Street.
The use of a group name by departing members cannot be authorized
here. The clear concepts applicable to ownership of a common-law mark
in a group name are detailed in Marshak v. Treadwell, 240 F.3d 184
(3rd Cir. 2001), which concerned “The Drifters,” a singing group
particularly well know for their 1950’s and early 1960’s hit
songs “Under the Boardwalk,” “On Broadway,” and “Save the Last Dance
for Me.” Although not a “concept group”, The Drifters’ composition
changed over the course of time, giving rise to a dispute as to who
had rights to the group name. The court held that, to demonstrate
ownership of a common-law mark in a group name, a claimant must
show “(1) that [the] mark was valid and legally protectable; (2) that
they owned the mark; and (3) that [another’s] use of the mark to
identify his group was likely to create confusion concerning their
origin” 9240 F.3d at 200, see also 240 F.3d at 198). Once created,
the right to the mark continues until the mark is clearly abandoned
(id. at 199; accord The Kingsmen v. K-Tel, Intl., Ltd, 557 F. Supp.
178, 183 [S.D.N.Y. 1983] This statement of the law is consistent with
governing copyright, trademark and Lanham Act concepts (see,
Traphagen and Litowitcz, The Song Remains The SAme — But Not
Neccessarily The Name, 39 Am. U. L. Rev. 975 (1990), and Singer, A
Rose by Any Other Name: Trademark Protection of the Names of Popular
Music Groups, 14 Hastings Comm/Ent L.J. 331 (1992). (FN3)
“Under this standard, the Producer has a clear common-law right to
the Dream Street name, and the use of that name by another would
constitute infringement. Indeed, the performers and their parents
originally acknowleded that Dream Street is a trademarked name and
they have no rights to such name even under a partnership of joint
venture theory (Production Agreement, article 20[a]). Explicit
recognition of ownership of a group name by the promoters of a
concept group is legally appropriate where, as here, it is undisputed
that (1) the public associates with the group characteristics or a
style which (2) is or are controled by the promoter (Bell v.
Streetwise Records, Ltd., 640 F. Supp. 575, 58. The distinctive
personality and performing style of the individual member and owned
group name).”
“FN3: Because teenage music groups often have identified Internet
addresses or domain name, it is noted that the same rules and
principals may apply to the Internet use of a group name (see, Yan,
Virutal Reality: Can We Ride Trademark Law to Surf Cyberspace?, 10
Fordham Intell. Prop. Media & Ent. J. J. 773 [2000] and Hodgson,
Registration and Ownership of Music Group Names in the Digital Age,
17 Ent & Sports Law, 3 [Winter 2000]). In this case, for example, the
Producer protested about a parallel website established for the group
by one or more parent, but no action was requested yet in that
regard.”
WHAT IT MEANS
I know the parents are going to say “we won, we can leave”, but the
court said that “there is no dispute that these three musicians are
free to leave Dream Street.” Before the court problems began, Jesse
had already left and the other guys were free to go at any time. That
was never an issue. Louie would never want to deprive anybody of the
right to go create something of their own and express themselves
creatively. That is why he had already released Jesse pursuant to his
request. I know the parents are going to say “we had creative
differences, so we had to sue”. If they had creative differences,
they were free to leave and go create. As the court said, on these
facts, “there is no dispute that these three musicians are free to
leave Dream Street”. The issue was that they wanted to go perform the
songs, dance the steps, use the clothes and style and pretend to
still be Dream Street in every way they could. That is what this OSC
was about . . . not the right to leave (which they had), not
endangerment (which was never even argued), not creative differences
(which allowed them to create anything they wanted if they had left),
but the right to take Louie’s creative property and pretend it was
their own. Louie taught them how to sing, how to dance, how to dress,
how to walk and how to talk, and they wanted to take that style an
immitate it 100%. If they had wanted to create something new, and
express themselves creatively, there never needed to go to court.
Most importantly, the court said “Under this standard, the Producer
has a clear common-law right to the Dream Street name, and the use of
that name by another would constitute infringement”. This means the
kids can’t use the name, the style or anything that suggests it. This
is the answer under the contract, under common law and under
copyright and trade mark law.
The court reminds everybody that “the same rules and principals may
apply to the Internet use of a group name”. Internet groups which use
the name Dream Street inappropriately are stealing the name, and
invading copyright and trademarks in the same way that the parents
and kids were proposing to do.
Final Decision, August 7, 2002. Index 116936/00
Supreme Court of the State of New York — New York County
DIANE A. DEBEDEFF, J:
Can the 4LM stay together at all?
Page 5, Line 3 starts:
“The second issue is the professed desire of the departing members to
continue to perform together, which was advanced without the
presentation of details of the planned operations of a new group. The
failure to address the name to be used by such a group is reason to
forestall judicial action, for many possible group names could
trample on the Produer’s rights addressed above. Even former group
members must be prohibited from using a variation of a groups
original name (see, collecting cases, McPherson, What’s in a Name?
The Use, Misuse, and Trademark Protection of Band Names, 18 Ent &
Sports Law. 3 [Spring 2000]; see also, McCarthy on Trademarks and
Unfair Competiton S 16:45, Disolution and Change of Performing Groups
[4th ed.]).
“Further, without placing concrete details before the court, the
request merely seeks an advisory opinion. The court has insufficent
basis to frame and issue a binding determination which would block
the Producers from the future assertion of a claim of improper
conduct or wrongful interference (see, as to limits on artist conduct
in new gruop, Cesare v. Wonk, 36 Ohio App 3d 26 (Summer Co. 1987),
where manager found to hold name and marks of the group, enjoined
former group members from use of name and distinctive style or “trade
dress”; see, as to interference claims, Parlett, From Victorian Opera
to Rock and Rap: Inducement to Breach of Contract In the Music
Industry, 66 Tul. L. Rev. 771 [192]0. The lack of a proposal also
leaves the Producer at a disadvantage for it wishes to retain any
contractual exclusivity rights it may have and is willing to make
concessions, but cannot frame any particularized response because of
the unstructured nature of the applicant’s request.
“Finally, given that the artists are still minors, the court cannot
approval an informal and unstructured concept without presentation
and close review of an actional contract regarding a child performer
in compliance with the Arts and Cultural Affairs Law. The very
purpsoe of this type of proceeding is to secure judicial approval of
a contract “to provide a degree of certainty for parties contracting
with infants in the entertainment industry so that the valdity of
such contracts whould not be rendered doubtful or subject to
subsequent litigation concerning reasonableness” and “to completely
eliminate the power to disaffirm under certain circumstances (Matter
of Prinze (Jonas), 38 N.Y.2d 570, 575 [1976]; see Munro, Under Age,
Under Contract, and Under Protected: an Overview of the
Administration and Regulation of Contracts with Minors in the
Entertainment Industry in New York and California, 20 Colum-VLA J.L.
& Arts 553 [1996]). A further goal of this type of “elaborate court
prodeedings” is a determination of what part of the contract
remuneration should be set aside for an infant perfroming artist
(Shields v. Gross, 58 N.Y.2d 338, 346 [1983]). Accordingly, this
branch of the application is denied as insufficient.”
WHAT IT ALL MEANS
The kids must have approval of a plan to do anything, because the
court wants to make sure it doesn’t “trample on the Producer’s rights
addressed above”. The parents didn’t bother to make a plan.
The plan must start with a proposed name, because “the failure to
address the name to be used by such a group is reason to forestall
judicial action, for many possible group names could trample on the
Produer’s rights addressed above”. The court can’t even begin to
allow the three guys to do anything together until they have an
approved name and an act which doesn’t violate the copyrights, trade
marks and common law intellectual property rights of Dream Street to
the songs, choreography, dress style, performance style, singing
style, etc. of Dream Street.
The property of Dream Street can even include the way they talk, walk
and dress. This is what they mean by the “use of name and distinctive
style or “trade dress””
In trying to get permission from the court for the three leaving guys
to do anything, the court declined to give them any “binding
determination which would block the Producers from the future
assertion of a claim of improper conduct or wrongful interference”.
There was nothing that the parents proposed to do that the court
considered to be appropriate.
“The lack of a proposal also leaves the Producer at a disadvantage
for it wishes to retain any contractual exclusivity rights it may
have and is willing to make concessions, but cannot frame any
particularized response because of the unstructured nature of the
applicant’s request.” Dream Street Entertainment’s rights against
competition still exist, and the parents will have to show a plan to
put together some kind of act that doesn’t use any of DS’ songs, etc.
before they can get any permission to do anything together.
The court made it clear that the parents couldn’t put together a band
with their own kids “without presentation and close review of an
actional contract regarding a child performer in compliance with the
Arts and Cultural Affairs Law”. The court was concerned that the
parents might spend the kids’ money: “this type of “elaborate court
prodeedings” is a determination of what part of the contract
remuneration should be set aside for an infant perfroming artist”.
