Legendary punk rock band MISFITS has dropped its lawsuit against a publisher over the advertising and sale of a photobook titled "Scream With Me - The Enduring Legacy Of The Misfits".
On March 9, Misfits A.D. — the limited liability company established by MISFITS founding members Glenn Danzig and Jerry Only to own and manage intellectual property, including trademarks and copyrights, associated with the MISFITS — filed a lawsuit against Abrams, claiming the publisher "willfully infringed" MISFITS' famous "Fiend Skull design" trademark and unlawfully copied and used MISFITS' copyrighted artwork in connection with the book.
On July 21, MISFITS' attorney provided notice of the voluntary dismissal of the civil lawsuit in a court document filed in U.S. District Court in the Southern District of New York. The filing says the dismissal is made "with prejudice," meaning the lawsuit cannot be filed again, and indicates that "each party shall bear his, her, or its own attorneys' fees and costs."
"Scream With Me - The Enduring Legacy Of The Misfits" is no longer being advertised on the Abrams web site, but appears to still be available from Amazon.com, Barnes & Noble and other leading book stores.
After MISFITS' lawsuit was filed four months ago, Abrams issued a statement to BLABBERMOUTH.NET via the publisher's legal representation, saying that it intended to "vigorously defend the lawsuit."
The statement read: "As the plaintiff admits, the parties corresponded about this matter last July through their counsel. At that time, Abrams pointed out to the MISFITS' counsel that the book's publication was permissible under well-established trademark and copyright precedent. We are surprised to now see this baseless lawsuit nearly eight months later.
"We are confident that the limited use of content that is alleged to be original to the MISFITS in the 'Scream With Me' book is well within the parameters of fair use. This same issue has been litigated in the recent past and courts have consistently held that such works are permissible, including in a well-known New York federal court case concerning a GRATEFUL DEAD visual book that documented the history of that band. In that 2006 case, the United States Court of Appeals for the Second Circuit held that the pictorial history of the GRATEFUL DEAD was a permissible fair use.
"Rather than having a sound legal basis, this lawsuit against Abrams seems to be mostly about the MISFITS' desire to publish their own book. Just as there can be multiple books about the GRATEFUL DEAD, there can be multiple books about the MISFITS."
In the MISFITS complaint, Danzig and Only claimed Abrams's photobook "is rife with large-scale, repeated, and unlicensed reproductions of Misfits A.D. intellectual property. For example, the cover of the photobook prominently displays, without authorization, the Misfits A.D. 'Fiend Skull design' trademark and, in doing so, misleads consumers into believing that the photo book has been approved by, or is associated with, Misfits A.D., which is indisputably false," the lawsuit read. "The photobook also unabashedly copies wholesale copyrighted artwork associated with the MISFITS' musical recordings and releases. The MISFITS' copyrighted artwork is an integral part of the band's extensive and highly successful line of officially licensed merchandise and its world famous lifestyle brand. In addition, the named authors of the infringing photo book have been falsely affiliating themselves with the MISFITS in connection with advertising and promoting the publication and release of the book, further harming Misfits A.D."
The complaint added: "In addition to the infringing cover of the Book, the Book is structured around the MISFITS Artwork with chapters that consist entirely of unauthorized uses of the MISFITS Artwork, with each of the MISFITS Artwork reproduced multiple times on multiples pages of the Book and using both exact copies and variants of the MISFITS Artwork."
According to the lawsuit, Abrams conceded that the purpose of the book is to "usurp the value" of the MISFITS artwork, having advertised the book as a "visual history" of the MISFITS that "spotlights the band's iconic and influential album and single art, fan club merchandise, original posters, [and] show flyers."
Upon learning of Abrams' planned release of the book, Misfits A.D.'s counsel wrote to Abrams to demand that Abrams cease and desist from promoting, advertising or selling the book. In response, Abrams admitted that it obtained clearances from other copyright holders for the foreword, interviews, quotes, and certain photographs contained in the book, the lawsuit claimed. Nonetheless, Abrams categorically denied that it needed clearance or authorization to use the Fiend Skull mark or to use and/or make derivative works of the MISFITS artwork in the book, according to the lawsuit.
The initial comeback performance by MISFITS members Danzig, Only and Doyle Wolfgang Von Frankenstein took place at the 2016 Riot Fest. The estranged bandmates played together for the first time since 1983 and were backed by former SLAYER drummer Dave Lombardo and guitarist Acey Slade.
Since then, the original lineup of the MISFITS has reunited for scattered dates, with the most recent one taking place in December in Philadelphia.
Prior to the Riot Fest concerts, Glenn, Jerry and Doyle Wolfgang Von Frankenstein last performed together on October 29, 1983.
The original MISFITS band broke up in 1983, and Only brought forth a new version of the MISFITS in 1995. Various members have come and gone, but Only, along with BLACK FLAG's Dez Cadena, has kept some form of the MISFITS in the recording studio and on the road for most of the last two and half decades.