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March|April 2003
Identity Crisis By Dashka Slater
Battle Of The Bands By Joshua David Mann
Trial By Prosecutor By Hiroshi Matsubara
Guanxi In Guangzhou By Katherine A. Mason
For Credit By Avi Schick
In Defense of the Slippery Slope By Eugene Volokh & David Newman

Battle Of The Bands

The Shallows v. Thee Shallows.

By Joshua David Mann

RECENTLY, A ROCK CRITIC AND JOURNALIST NAMED BILL WYMAN was contacted by a lawyer representing the former bass player for the Rolling Stones, whose name also happens to be Bill Wyman. The critic received a letter akin to a "cease and desist" order, maintaining that the critic's name was confusing, especially when critic Wyman wrote about the Rolling Stones, as he had done several times. Delighted by the inanity of the issue, critic Wyman suggested in the Atlanta Journal-Constitution that he change his name to "Not That Bill Wyman" to preclude any misunderstanding. But the change turned out to be unnecessary: The critic had been called the name for three years before the bass player William George Perks changed his name to "Bill Wyman" in 1964, and the critic had his birth certificate to prove it.

Confusion in the rock-and-roll world isn't always so easily dispelled. Artists and bands seem to gravitate toward the same words and phrases when searching for a name. The practitioners of certain types of music have some unavoidable affinities—death-metal bands, for instance, have a hard time resisting the words "dark," "flesh," and "throne" when it comes time to choose a name. Even seemingly inimitable names can be a source of confusion. The rap-rock band Limp Bizkit has become known to its backwards-cap-wearing fans as "Limp," and it now risks being confused with at least two other bands of the same name, an alternative pop-punk group from California and an electronic post-rock quartet from Denmark.

Both lesser Limps are obscure and pose no real threat to the far more visible Limp Bizkit, which has never threatened either one with a lawsuit. It's not uncommon, however, for bands to fight over a name. Long before they became impish champions of adolescence on MTV, the pop-punk trio Blink 182 was known as Blink. In 1995, Blink's members were threatened with litigation by an Irish techno band that claimed they had been using the moniker first, and the punk band took the threat seriously. Lawyers likely told the up-and-coming trio that band names are like brand names: They indicate the source of a commercial service and fall under the protection of the U.S. Office of Patents and Trademarks.

With something like 80,000 recording artists in the world, finding an original name isn't easy. But what are the chances that two relatively unknown bands in the same city that have never crossed paths would come up with essentially the same name, distinguishable only by the vowel "e"? Unfortunately for them, it happened last year when The Shallows and Thee Shallows collided in San Francisco. The Shallows is Brian Gregory, a musician who often plays bass with the independent artist Mark Eitzel. Gregory performed under the name The Shallows starting in March 2000, playing an innocuous blend of pop and alternative rock in shows around the Bay Area. He also appeared as The Shallows on an album released in Britain, which featured eminent alternative artists like Cowboy Junkies and Bright Eyes but was in no danger of going platinum.

In mid-2001, when Tadas Kisielius and David "Dee" Kesler provisionally decided to call themselves "Thee Shallows," they didn't think there was any cause for concern. They had been playing in a band called Shackleton—named after the explorer who saved his crew from shipwreck during a voyage to Antarctica—which broke up in December 2000. (Things had apparently come to a head after a disagreement about how to cover Journey's "Don't Stop Believin' " at a local benefit concert.) Kisielius and Kesler, whose drone-pop songs typically start out quietly and then crescendo to a climactic moment of multi-instrumentalism, liked the way the two adjacent "e"s looked in "Thee" and embraced the word's ambiguity: It can be read either as a phonetic spelling of the emphasized article "the" or as an inflected form of the archaic pronoun "thou." "Thee," Kisielius noted, "is a little more playful and it disarms a potentially bookish name."

To make certain they weren't trespassing on another group's title, Kisielius and Kesler did some research. They turned up an oldies band called "The Shallows" that, according to its website, is popular in the northern New Jersey club scene and has worked with the Temptations "not once but twice." They learned that the experimental space-rock guitarist Roy Montgomery—whose droney, fuzzed-out guitar work helped give birth to the Flying Nun record label in New Zealand—had used the name "The Shallows" for a single released in 1985. But none of their discoveries seemed grounds for the duo not to proceed with their chosen name. Kisielius and Kesler christened themselves Thee Shallows and began performing and recording.

Around the time they got the inserts printed for their first CD, A History of Sport Fishing, they were contacted by Brian Gregory, who explained that his group and theirs shared—nearly—the same band name. He was concerned that since both bands were based in San Francisco and performed in the same circles, fans would confuse The Shallows and Thee Shallows. "I had people come up and ask me if I was playing the Makeout Room when it was Thee Shallows, not The Shallows, who was really playing," Gregory said. He asked Thee Shallows to change their name.

Kisielius and Kesler were reluctant. Their record label, Megalon Records, a small outfit with 11 releases to its name, had just printed up all those inserts bearing the name Thee Shallows. A reprinting would put Megalon out another $1,000 and would delay the album's release. A few weeks later, however, Thee Shallows received a letter from counsel for The Shallows advising them to stop using their band name. In the tradition of Dylan, they might have written a song about the injustice of the situation. In the tradition of any new band hoping to catch a break, they might have called the local rock critics and used the letter from counsel to make their music sound like it was worth paying attention to. Instead, they caved.

"Although I'm pretty sure he wouldn't have had the money to pursue the legal course of action," Kisielius said, "his connection to Eitzel made us wonder. We hadn't released anything under the name yet, so it seemed almost worse to forge ahead and potentially have this thing come up some time in the future when we had more invested in the name." Thee Shallows devised a name change: After auditioning a few names (Thee Original Shallows and Shallows Jr., among others) they settled on Thee More Shallows. With the addition of "More," their name acquired another bit of awkward syntax, which they considered a good thing. "We liked the fractured grammar of it and the fact that, especially with the 'More' thrown in there, you can't tell which words are acting as which parts of speech and which ones are modifying the others," Kisielius said. The CD inserts were amended with a sticker that reads, "due to legalitees [sic], we are now Thee More Shallows."

THE DEBATE BETWEEN THE SHALLOWS AND THEE SHALLOWS could have been decided easily if one of the bands had bothered to register its name with the U.S. Patent Office. To get the federal rights to a trademark, a band has to demonstrate that it has used the name in interstate commerce through record sales or concert advertisements. Bands can also register their names with state trademark offices, though two bands could have the same name registered in different states, with no clear rule about who owns the name. Federal registration, on the other hand, grants better coverage and allows bands to sue in federal court for trademark infringement.

The major record labels handle the paperwork for the pop music elite, but most independent artists don't take advantage of their rights, partly because they are unfamiliar with the minutiae of trademark law and partly because the fee for filing an application is $335. State registration fees are less expensive—they usually run in the $50–$70 range—but most small bands prefer to spend their money on guitar strings and van repair.

When a legal challenge does arise, the plaintiff must show that there is a substantial likelihood that a consumer presented with the defendant's mark will believe that he is about to purchase a product made by the plaintiff. To make this determination, the court considers various factors. One is the similarity of the products or services: The makers of, say, Cadillac dog food would argue—in response to a trademark infringement claim by the automaker—that no one about to purchase dog food would believe he is purchasing a product made by General Motors. Another factor is distinctiveness. A lemonade brand called "Ice Cold Lemonade" would be unable to enforce its trademark in court, because its name is too generic to be identified with a single brand. The most important factor is the similarity of the trademarks: Had Thee Shallows resisted, Brian Gregory would have had to convince the court that allowing a band in Northern California to perform as Thee Shallows was likely to confuse consumers. It's a case that the "the bands" at the vanguard of the recent garage revival—The White Stripes, The Strokes, The Hives, and The Vines—no doubt would have followed closely.

As it happens, neither The Shallows nor Thee Shallows is very happy with the way things turned out. Brian Gregory isn't pleased with the perfunctory adjustment that created Thee More Shallows. He is "irked by the name," he said, "since they didn't really do anything to change it." Kisielius and Kesler, who at first were kind of proud of their fix, have discovered that adding "More" to their name has made a big difference—by causing a different kind of confusion. Booking agents and music critics are stricter grammarians than you might expect. When printing up announcements for shows or writing reviews of Thee More Shallows, they tend to think the name's strange syntax must be a mistake, and they correct it. "We've been listed as Three More Swallows, Thee More Sallow, and Three More Shadows," Kisielius said. Even their old colleagues can't get it right. An update on Shackleton's website casually reports that former members Kisielius and Kesler have started a new band known as—"The Shallows."

Joshua David Mann is the director of music analysis at MediaUnbound, a music software company, and a D.J. at WHRB, Cambridge, Mass.

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