Ill-suited art

As soon as you enter the brightly lit Cass Cafe just south of Wayne State University, your eyes are greeted by a striking display of Mark Arminski's four-color, hand silk-screened rock posters lining the walls. So varied is their imagery, color, design and range of bands represented -- 66 framed works from Iggy Pop to Patti Smith to the Stone Temple Pilots -- that the casual viewer wouldn't know that two recent works from this internationally recognized artist are missing.

The two images are at the center of a lawsuit brought against Arminski by the merchandising arms of the Dave Matthews Band and Phish, for infringement on the bands' trademarked names on posters he did for their concerts.

Like other artists in the field of rock promotion, Arminski creates posters at the behest of a promoter using a band's name, the venue, date and creative imagery to advertise a rock concert or tour. Typically, a few hundred are printed in advance of show time, with about half going to the poster artist for sale after the event in lieu of payment.

Phish and the Dave Matthews Band are challenging this long-established practice and have each filed a $50,000 complaint in a New York City federal district court charging Arminski doesn't have the right to sell the overprints with the bands' names. In early proceedings, the artist agreed to a voluntary injunction against exhibiting or selling the two posters in question.

Philip Goodpasture, general business attorney for the Dave Matthews Band, contends the purpose of the suit is not "to create a huge hassle for Arminski." He says the band was asked to join the suit by the Phish management to deal with unauthorized use of the bands' trademarks. "It's really a matter of communication," he says. "Under the laws affecting intellectual property, we want to make sure artists are getting proper permission before using our copyrighted images."

The issues at stake have ramifications beyond just one artist. Gary Grimshaw, Detroit's premier poster artist, who has received payment in the same manner as Arminski since the Grande Ballroom's 1960s heyday, contends that "if this suit against Arminski is successful, it will destroy the rock poster industry."

For his part, Arminski, a native Detroiter who began doing posters for Rob Tyner of the MC5, the Vertical Pillows and the Hysteric Narcotics in the mid-'80s, expresses dismay at the suit, which threatens to turn his world upside down. After creating 150 posters for national and local headliners, he says he hasn't drawn one since the suit was filed in August.

"I started doing this as a hobby," says Arminski, who left a career as an ad agency graphic artist to do rock posters. "I do this for the fun of being involved with the music and the bands I love, and sell the posters to cover my expenses." He wonders why he's being sued by a band like Phish. The band's recent tour grossed $21.3 million, according to concert industry trade magazine Pollstar, and Arminski's income offers little money for the band to actually collect.

Arminski has offered to settle out of court, even to give bands royalties on the disputed posters. The lawyers for the bands responded with an offer to accept $48,000 per band. "They've been jacking me around since Day One," he says, "and I don't know why."

He thinks the bands themselves might not even know about the suits, noting that memebers of both groups autographed copies of his posters for their 1995 and 1996 concerts in East Lansing and Pittsburgh.

Birmingham sports and entertainment attorney Debbie Schlussel thinks the bands' legal management probably fears their clients' trademark can be considered abandoned if they are allowed to circulate unchallenged in the public domain. In other words, letting Arminski reprint the posters without explicit permission from a given artist opens the door for anyone to do so - or so that line of thought goes. Schlussel says she understands their concern, but feels the suit will have a tough time.

"The court will look at traditional industry standards and customs for areas not directly covered by a contract," she says. Since the promoter, acting as an agent of the band, verbally contracted with the artist for a poster and the traditional method of payment is selling the overruns, she observes, "The court would look at this very seriously."

Grimshaw, who recently came through a costly and acrimonious suit based on poster copyright issues in San Francisco, where he know lives, blames the rockmerchandising units. "The bands are surrounded by morons and lawyers trying to justify their salaries. The artist owns the poster from Day One," he asserts. This contention stands in sharp disagreement with the Matthews Band's Goodpasture.

Unfortunately, the divergent views may have to be settled in the courtroom or in strict contracts governing prior artistic approval of posters and how artists are compensated. Grimshaw thinks this will be a tragedy. "Who's going to want to do a poster," he asks, "if the art is under the control of merchandising units?"

Grimshaw and several others, including Stanley Mouse - another legendary poster artist originally from Detroit and best known for his Grateful Dead album covers - are holding a Jan. 23 benefit exhibition at San Francisco's Art Rock gallery to raise funds for Arminski's defense.

"If Mark loses this case," Grimshaw says, "I'll be looking over my shoulder." Peter Werbe is the host of "Nightcall" on WRIF (101.1 FM). E-mail him at [email protected]

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