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, Va. Over the past couple years I’ve gotten quite
an education about Phish fandom through my work on the development
of the book PhanArt: The Art of the Fans of Phish,
compiled and just-published by my client 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 in the years prior to the band temporarily calling
it quits in 2004.
The book is a dizzying, 420-page (!!!) 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
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 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 poobahs of grooviness) and
other major acts coming to town.
It’s never a perfect system. The folks doing the street policing
are not typically 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 on anything gets seized
as well. I remember getting calls in 1991 from a furious independent
T-shirt vendor 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 issued 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; 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 result in some of the most
clever and interesting fan-generated works. Pete tells me
that new stuff was selling like crazy in the lots at Hampton
all weekend long.
But if there’s any lingering question as to 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. ’Nuff