Yikes. $195,300,000,000 is a lot of cash for Rolling Stone to lose, in the unlikely event that this case goes to trial.
The messy saga we've lovingly dubbed Camelstonegate took a fairly expected turn this week as Xiu Xiu and Fucked Up filed a class action lawsuit against Camel cigarettes' parent company R.J. Reynolds Tobacco, Rolling Stone, and the magazine's parent company, Wenner Media
The suit-- filed December 17 on behalf of 186 artists whose names appeared in Rolling Stone's "Indie Rock Universe" feature, tucked conspicuously within a fold-out advertisement for Camel's indie-friendly "The Farm" campaign in the magazine's November 15 issue-- accuses the defending parties of "unauthorized use of artists' names; unauthorized use of artist names for commercial advantage (right of publicity); and unfair business practices."
Xiu Xiu and Fucked Up essentially claim that Rolling Stone created and presented their feature with full knowledge that it would appear part and parcel with the Camel ad. The plaintiffs ask that the magazine print a follow-up feature equal in size to the original clarifying that artists' names were used without consent. They're also seeking financial recompense for damages: Rolling Stone alone, the Daily Swarm suggests, could be forced to pony up as much as $195.3 billion if found guilty.
[From Pitchfork: Indie Bands Sue Camel, Rolling Stone Over Ad]
I am further amused by the fact that I ripped this insert out, unseen, as I do for all inserts in all magazines. So, a waste of money for RJ Reynolds altogether. I should have saved the insert, and put it up for sale on eBay.There are so many bands named (184 by my count, with most having several band members.), that the First Cause of action alone could add up in aggregate:
On the First Cause of Action, for an award of $750.00 for each violation for each plaintiff and each member of the Class, or in the alternative an award of actual damages proximately caused to them, whichever is greater
More here, including a copy of the complaint (fun reading, but PDF), and a scan of the actual insert, here
The 18-page complaint filed today reads partially like a Pitchfork review written by a music-nerd attorney. Xiu Xiu’s work is described as “often thematically dark, marked by non-narrative, evocative lyrics delivered in small fragments, and is varied in instrumentation, which can include koto, digital sound samples, and whistles, as well as bass, keyboards, percussion and guitar – or some combination of some or all or more.” Fucked Up’s work is described as “direct, sonically violent at times, and often characterized as hardcore punk, with the sometimes acknowledged influence of Spanish Civil War-variety anarchism, Viennese Actionism and the Situationist International.” Another section of the lawsuit cites Joanna Newsom’s “complex, rapidly shifting orchestral arrangements acutely attuned, moment by moment, to the content and color and emotional pitch of the narrative;” Stephen Malkmus’ “witty and sometimes gnomic lyrics, angular and arresting melodic lines, and unusual, adroit instrumental invention;” and the White Stripes’ work is described as “instrumentally and vocally spare, without backing by bass guitar, and sometimes reminiscent of early Detroit-area garage rock music harking back to Mitch Ryder, the Amboy Dukes and the Scott Richardson Case, but also partaking of Appalachian folk music and other genres.”-- update, according to one interpretation, the damages could be multiplied by the number of issues of Rolling Stone circulated
The California law, as written, allows for $750 in damages per violation. If a "violation" is defined as a single issue of Rolling Stone, and there were 1.4 million copies printed (RS's circulation), and there are 186 bands...then *conceptually* the payouts could total in the billions. Of course, that will never happen. But the damages awarded to the bands could, realistically, be quite large.
Here's the law:
Cal Civ Code § 3344 (2007)
§ 3344. Unauthorized commercial use of name, voice, signature, photograph or likeness
(a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to present proof only of the gross revenue attributable to such use, and the person who violated this section is required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney's fees and costs.