by Andy Powell
‘Goodwill’ was something that came up a lot in our case: the intangible but nonetheless crucial concept that, in terms of musical acts, a reputation with commercial currency attaches to that act which endures for an indefinable period after that particular act has ceased to be active. Martin, Ted, and Steve seemed to believe that any goodwill in Wishbone Ash’s brand was wholly traceable back to the first line-up, in which they had been a part (although Ted, under cross-examination, conceded that the goodwill when he left in 1974 passed on entirely to the new line-up with Laurie Wisefield); my view was that the entity had never ceased, and consequently said goodwill was being constantly refreshed with new performances and recordings.
The Animals’ case involved a band that had stopped entirely (after the 1983 reunion), unlike Wishbone Ash, with versions reappearing by stealth in the years subsequent to that. The Saxon case—Byford vs Oliver and Dawson, 2003—was referred to a lot by both sides in the Wishbone Ash case and was different again. This time, two former members had registered the trade mark for the name while the band (long without them) played on, to borrow an appropriate phrase.
Saxon had been going since the mid 70s: Steven Dawson and Graham Oliver had left in 1985 and 1995 respectively; Biff Byford, the frontman, carried on throughout, as he does to this day. In 1999, with Saxon still active, Oliver and Dawson applied for a trade mark in the name and, remarkably, were given it. The Trade Mark Registrar had decided that any of the original members had a right to register the name and Dawson and Oliver were simply the guys who had got there first. The judge in 2003 ruled that the trade mark had been applied for in bad faith, and consequently Biff was able to carry on rocking in the ever-evolving saga of Saxon thereafter.
The judge in the Byford case, however, had actually created new case law—which was cited in the 2013 Animals judgment and also, as it would transpire, in our own—which seemed to have unresolved potential consequences. His judgment, in explicitly linking the goodwill in a band to the informal partnership that created it, effectively implied that in bands that are or were such a partnership (as most bands of our era were, with nothing on paper), the name cannot be used in the event of one member of that partnership leaving.
In practical terms, of course, virtually the only bands of our era of any consequence to have observed this principle—stopping entirely when one member leaves (or dies)—are Led Zeppelin and The Beatles. Or, at least, that was the case with The Beatles as the world knows them: John, Paul, George, and Ringo.
Poor old Pete Best, The Beatles’ drummer between 1960–62, had to live not only with the ignominy of being sacked from the band on the cusp of their EMI recording career and world domination but also with his very name becoming a byword for any early member of a subsequently successful band who missed the boat. I wonder what would have happened had he taken The Beatles to court in the 60s? Funnily enough, he ran a band called Pete Best & The All Stars for a while after his sacking—a coincidental pre-echo of Ringo’s own post-Beatles outfit. He also released an album in the USA at the height of Beatlemania called Best Of The Beatles. Pete finally had a payday from his Beatles association with the release of Anthology 1 in 1995 and has since returned to music as a kind of retirement hobby, running his own Pete Best Band. The funny thing is, he has a second drummer in the line-up, his brother Roag. This opens up a whole cupboard of amusing possibilities: if Roag is ever sacked, does that mean he becomes the ‘Pete Best’ of the band? And what would that make the actual Pete Best, who would still be in the band? Taking the hypotheticals to their ultimate point, if Pete outlives both Paul and Ringo, would there be anything stopping him, if he wished, from performing as Pete Best’s Beatles with whomever else he chose? I doubt if he would wish to—he seems at peace with his lot now—but it’s an interesting question. A version of The Quarry Men—the 1956–60 pre-Beatles skiffle group that included John, Paul, and George in its ranks—reformed in 1997 under that name, featuring five original members, and continues to tour. It’s a great example of the textbook of rock continuing to be written.
Roger Waters spent a long time being seriously annoyed that the Beatles/Zeppelin principle hadn’t applied to the remaining members of Pink Floyd when he decided to leave the band in 1982. However, he recently revealed on TV, during an interview on The South Bank Show, that he had been misguided in his pursuit of the Pink Floyd name after he’d quit the band and the rest of them had simply decided to carry on. As for everyone else, we tended to muddle through, evolve, get new people in, and keep Pete Frame in business. Sometimes it might be a pretty threadbare afterlife: the current version of Dr Hook is ‘Dr Hook Featuring Ray “Eyepatch” Sawyer’. If you really need to hear ‘Sylvia’s Mother’ sung by the man who played maracas on it, this is the show for you.
If I were to win the Wishbone Ash case, Mr Recorder Douglas Campbell would have to add to case law and create a precedent—a new interpretation—for what happens vis-à-vis the goodwill attached to an old-school ‘partnership’ band when people leave one after the other and it devolves down to one guy: the last man standing.
Not all vintage bands in these multiple-version situations go down the legal route. The financial implications are not to be sneezed at. The two Barclay James Harvests, for instance, have—at the time of writing—fought shy of sorting it out in court. It’s only a guess, but I would imagine that their previous experience of the law is putting them off. In 1985 a musical arranger, Robert John Godfrey, who had worked on a couple of their early albums in the 70s, sought redress against all four BJH members (John, Les, Woolly, and Mel), alleging that he was essentially a fifth member and had co-written a number of their songs, and as such was entitled to substantial recompense. When it came to court in 1995 the judge ruled that he had a reasonable claim around the co-authorship of six songs but kicked out any notion of being owed a share of the band’s subsequent success based on this ‘fifth member’ suggestion. The case was apparently both stressful and expensive, and I can understand why John and Les aren’t rushing to repeat it. Still, at the very least, that judge back in 1995 did manage to protect mankind from any possibility of a future entity called ‘Robert John Godfrey’s Barclay James Harvest’.
All this goes to show that where there’s a musical brand that has some level of resonance with the public, and some level of ongoing commercial viability, questions of brand ownership will continue to be relevant—and solutions to the consequences of complex membership histories and cooled personal relations will continue to be sought. These days, it would be a very foolish band indeed that didn’t have something on paper from the outset covering these issues. But there are more than enough active survivors from the glory days still kicking around to ensure that cases like Powell vs Turner keep having to be heard to help fix the leaky plumbing of long ago.
* * *
The result of the case was due on October 24 2013. The court days had come during a tough period for us: we had a friend’s funeral, then two days in court, and then a tour starting almost immediately after that. When the result came through we were heading toward a show in Kendal, in England’s Lake District. The recollection is vivid because to get there we were driving across moors and had no phone signal at all—with the knowledge that a call from our lawyers was imminent. We were very tense. We pulled in to get some diesel, and then the phone rang. It transpired that the only reception for miles and miles around was at that petrol station. And, by chance, that was where we were the very moment the lawyers happened to phone.
‘You’ve won,’ they said.
It had been a long four or five weeks to wait but at the end of that second day my feelings were that if the case did not go our way, something must be seriously wrong with the legal system. I was really hopeful but resolved at the same time.
In the event we were awarded costs and then began preparing for a damages hearing, for which we produced a very detailed analysis of Martin’s activities and how they had negatively impacted our own. It was a massive amount o
f work—we had to produce a spreadsheet of eight years of gigs Martin did in order to justify our claim, including information on his fees, as well as what shows we could have done had he not been on the scene, what shows of ours had been gazumped, what shows of ours were impacted, what shows we were prevented from going back to because he had undersold the band to such a degree that the credibility of the name was shot. It was totally forensic—a daunting project taken on by our loyal agent Andy Nye. In the end, however, we did not proceed with the damages hearing, as Martin had entered bankruptcy.
The full judgment is available online, but in a nutshell, having heard all the evidence and explored at length a wide variety of previous judgments, Recorder Campbell had come to the following conclusion:
I am in no doubt that the use of [the name] Martin Turner’s Wishbone Ash involves a clear likelihood of confusion with the registered mark.
I had needed to show only one of three possible kinds of injury, known in the law as ‘dilution’, ‘tarnishing’, and ‘free riding’. The judge was satisfied that two of these three were established: dilution (wherein the market is diluted as a result of the confusion) and free riding (wherein the rival has essentially prospered on the coattails of the claimant’s brand). Tarnishing is where the reputation of a brand is diminished by the appearance of poor-quality bogus versions of that brand. This was the judge’s view on the matter:
It was suggested that the Defendant’s band was of lesser musical quality than the Claimant’s band; that it cheapened the brand by playing smaller venues and/or for reduced prices; and that it had harmed relations with promoters. I am sure that the Claimant sincerely believes in these complaints but they were strongly disputed by the Defendant and were not substantiated by the evidence. I reject that part of the Claimant’s case.
Earlier in his judgment, Recorder Campbell had commented thus on Andy Nye’s evidence:
In Mr Nye’s view, the fact that the Claimant’s band was still producing new material was a key factor in its being able to continue touring, and that if the band had merely played the original songs that would not have been possible. I do not agree … the Defendant’s band does not play any new songs, yet has toured for many years.
Establishing whether one performing entity is of a lower standard than another is, I’ll agree, a difficult proposition. If it were simply a matter of comparing two recordings, the evidence is there in aspic, ready to be mulled over by trained musicologists for as long as they require, but live performance takes place in the moment, and appreciation of it to a great extent a matter of subjective opinion. Beauty is the ear of the be-hearer. I can certainly appreciate, and accept, the judge’s ruling on this aspect, though the question of whether a vintage act can successfully tour over an extended or indefinite period of years is an interesting one.
On the one hand, an act like The Rolling Stones can seemingly tour on an ever-ongoing basis playing only old material because they’re a special case: they are so wrapped up in mythology (be it of their own making or others’) as ‘the greatest rock’n’roll band in the world’ and have such huge personalities in Jagger and Richards, whose reach extends way beyond pure music fans, that they can almost be guaranteed sell-out stadiums any time they choose to regroup. They are an event—a kind of ‘bucket list’ experience rather than a simple live music show. Intriguingly, almost nobody on earth is interested in them recording or performing new material—and with hours of classics to choose from, they don’t need to. The very fact that Jagger, as I pointed out in evidence, can release a new solo album and sell fewer than 1,000 copies of it in his home country—while stadiums full of people are simultaneously ecstatic at paying hundreds of pounds to see him perform old songs under the Rolling Stones banner—surely demonstrates the point. You might also be able to make the case for The Who being in that bracket as well, although Townshend is too restless a writer to be happy without some kind of new project on the go and odd new songs dropped into the set—but seeing The Who in the twenty-first century, selling out huge arenas, is still largely an oldies show. Paul McCartney could very easily play oldies sets from here on in, but again he’s a restless creative—and more prolific than Townshend at releasing new stuff. You feel that it must be a matter of pride for him to keep pushing new albums and singles and working the media.
Those two or three exceptions aside, though, I’m firmly of the view that peddling classic material alone is a template for diminishing returns. The way we appreciate albums as listeners may have changed radically from the 70s, when buying a new record was an event and listening time for it was more dedicated than it can possibly be today—where everything is instant and fast moving, and so many other distractions are available—but core fans of any working band or artist want to, expect to, and deserve to hear something new on a regular basis. If I were to perform the whole of Argus as a tour set, it would be a great tour the first time out; second time out, there’d be fewer people; third time, fewer still. Aside from core fans, the media and promoters need to see that an act is still creating new work for its credibility and currency to remain, which of course affects the fees that can be negotiated for performances. And finally, as musicians, we need to have the goal of periodically working on something new to sustain our own interest and self-belief.
Eventually, if you stop creating new work, your audience will simply drift away. A case in point is the American singer-songwriter and solo bluesman Chris Smither, who had a popular and acclaimed career in 1969–72, releasing two albums and giving Bonnie Raitt her signature song, ‘Love Me Like A Man’. He then boozed for twelve years on the road as his audience gradually moved on. He only resurrected his career when he stopped drinking and started writing and recording new music again in the mid 80s. Chris is currently a major figure in the roots music world, and he would tell you without any doubt in his mind that it was the new music, not his lifestyle changes, that brought the punters back.
As for Wishbone Ash, we’ll respectfully agree to differ with the judge on this one: we’ll continue delivering new music and continue refreshing the oldies part of the set. All the original band members have a lot to be proud of from those 70s records, but if I left it at that, I have a feeling that the scenario I mentioned earlier, with the velvet suit and the lounge bars, might become a little too plausible.
Mr Recorder Campbell went on to say:
Given the Defendant’s case that the qualifier is sufficiently strong to prevent confusion with ‘Wishbone Ash’ arising in the first place, it is difficult see why the words ‘Martin Turner’ are not strong enough to use as a name for his band. The Defendant’s logic was that people were coming to see him because he was widely recognised as the creative force behind the original Wishbone Ash, hence using his name should attract those people.
I find that the Defendant’s use of Martin Turner’s Wishbone Ash was without due cause, as was the use of the domain name to market his band.
And finally, the judge rejected outright Martin’s counterclaim to see my accounts from 1969 to the present and obtain a share of all profits based on the share of goodwill that resulted from his contribution to the original band. He rejected this manoeuvre on the basis that: (a) it was a bit late in the day, given that he hadn’t sought anything in the near forty years since the demise of the original band; (b) I was the sole owner of the goodwill since 1998; and (c) based on the logic of the Byford vs Oliver judgment, he was the wrong person to even be making the claim—it could only come from an Administrator on the dissolution of the ‘partnership’—and, if it did, we’d need to see Martin’s accounts too.
I won’t lie: the judgment made me extremely proud to be British. And it made me feel extremely proud of the team that had put the case together.
Martin Turner believes, as he says in his promotional material, that he’s ‘the original founding member and key creative force of Wishbone Ash’. Whatever his contribution to Wishbone Ash, and whatever his creative force may be, the real tragedy is that not on
ce in this whole process were he and I able to sit down in a room, one-on-one, and thrash this out—which we could have done easily.
You can still go to Martin’s website and find a small number of people posting there who enjoy complaining about it. That’s up to them, but I can’t suddenly change my life or erase bits of it to please a few hundred people. What I’ve found when I travel around is that most humans want to help other humans—that’s the basic modus operandi of people. If something’s positive, they’ll get on board with it. But there’ll always be curmudgeons and conspiracy theorists. It’s a different world, and I’m glad I have no part of it.
I enjoy the old albums as much as anyone. They’re little vignettes, but they’re from another century, for God’s sake. I listen to an old recording of a song like ‘Blind Eye’, on vinyl, and I think, My God, that’s just brilliant. It’s the coming together of a number of forces at that particular moment in time, which can’t be recreated. But taking the decision to lance the boil of what Martin was doing was inevitable, because I felt that we had something current to protect. Not only my livelihood but the livelihoods of my fellow band members, Bob, Muddy, and Joe; the reputation of the band name; and not least the body of work that we’ve made in the last ten-to-fifteen years. We don’t make new albums for the hell of it—we do the best we can every time and we put heart and soul into it and hope people enjoy it just as much as the records we made in the past. To me, that was worth protecting. Bringing it to court wasn’t a matter of ego, it was about dignity.
