On June 20, 2005, my faux French band Les Sans Culottes showed up for our strangest gig to date: an appearance in federal court.
I can only imagine what was going through the mind of the Honorable Richard C. Casey. Here was a judge who had presided over numerous prestigious cases (he rendered the verdict declaring the Bush administration’s 2003 partial-birth abortion ban unconstitutional). He now commanded the bench before a splintered band that, for the last seven years, had dressed in psychedelic outfits, playing loud music in stinky bars while pretending to be French. I suspect Judge Casey was thinking the same thing I was: How did I get here?
I can’t speak for the judge, but Les Sans Culottes’ journey to federal court began in 1998, when we came together to play music from the ‘60s French pop yé yé era. The band, whose initial ambition was to provide some dance music and enjoy free drinks, slowly evolved: We released several albums, charted on college radio, were featured on NPR, and graduated from Brooklyn dive bars to headlining venues like New York’s Bowery Ballroom.
Despite such success, we had our share of personnel issues. Band members fought, quit, and were occasionally voted off the island. When you spend so much time together, you become like family—in other words, dysfunctional. But what happens when relationships become so toxic that divorce is the only option? Who gets custody of the band’s name?
There was always a healthy dose of friction among Les Sans Culottes, but things began to deteriorate seriously about a year and a half ago. Some readers may recall my Slate “Diary” from April 2004, when I alluded to the antagonism between myself (stage name Jean-Luc Retard) and the band’s lead male singer (stage name Clermont Ferrand). Ferrand wasn’t thrilled with my diary and was quite furious with my suggestion that he was responsible for a foul smell on stage (“12:17 a.m. Middle of set. Smell something hideous from stage left. Think, ‘I wonder if Bill had time to eat a fish taco before the show.’ “). But we were in a faux French rock ’n’ roll band from Brooklyn—having a sense of humor was part of the deal, or so I thought. He didn’t quite see it that way.
Nearly a year later, things between Ferrand and me remained contentious. (He had reportedly threatened me with violence if I attempted to share the stage with him again.) But I wasn’t the only disgruntled Culotte: Céline Dijon, our star female singer and the only real Frenchie, said she felt so tyrannized by Ferrand that she bade adieu. And Ferrand allegedly told our guitarist and primary songwriter, Cal D’Hommage, he would be dismissed from the band if he missed practice to attend a Passover holiday family reunion. The merde had hit the fan.
Rather than let le bateau sink under the misdirection of its captain, we opted for mutiny. We discussed an intriguing, revolutionary (our name, after all, was taken from the French Revolution’s ill-clad posse known as the sans-culottes) idea: a coup d’état.
We notified Ferrand via e-mail (or sent him to the e-uillotine, if you will) that we would be continuing as Les Sans Culottes sans him. Days later, Ferrand sent us a cease-and-desist letter claiming we were in violation of his self-proclaimed “de facto” trademark (at the time, nobody had officially registered the trademark; although, once ousted, Ferrand did submit the application). Despite the letter, we played a packed show at New York’s Lower East Side club Sin-é. We thought Ferrand might show up and cause trouble, so, as a joke (mostly) Céline Dijon arrived on stage wearing handcuffs and a Kevlar bulletproof vest. The gig was violence-free, and we reveled in our newfound liberation.
The next day, we got served: Ferrand was suing us in the Southern District of New York. That’s federal court. Did I mention that Clermont Ferrand is a lawyer?
Unlike copyright law—intended to protect the creator of a work—the primary function of trademark law is to protect the public from potential confusion arising from multiple versions of the same product. If Les Sans Culottes performed without Ferrand, or Ferrand formed another Les Sans Culottes with new musicians (which he quickly did), would the public be “confused”? Would the real fake French band please stand up?
We weighed our situation against the precedents. In 1964 Jack Ely, the lead singer of the Kingsmen, left the band before “Louie, Louie” charted. Years later, Ely recorded a new version of “Louie, Louie,” and K-Tel International planned to release it as “The Kingsmen.” The remaining members of the band, who had continued touring as the Kingsmen without the hit’s singer, sued K-Tel and won. The court noted, “Given the collective sound of The Kingsmen, no single member of the group would be able to hold himself out as The Kingsmen without a substantial likelihood of confusion on the part of the public.”
The Rolling Stones kicked out Brian Jones without litigation in 1969, though he had founded the band and come up with the band’s name. And in 1980, a court ruled in favor of the existing members of Deep Purple who sued Rod Evans—the group’s original singer and frontperson, who left the band in 1969—for touring with a new group under the same band name. Rock history seemed to be in our favor.
Also in our favor, according to a lawyer friend of mine, was that the judge hearing our case (a blind, notoriously cantankerous old man) did not “suffer fools lightly.” In his opening statement, Ferrand hardly got a word in before being interrupted.
Ferrand: “Plaintiff’s probability of success on this trademark infringement claim is established not just by the fact that he created the highly conceptual French band Les Sans Culottes … “
Judge: “What does all that mean?!”
The judge became increasingly irate as our session wore on but was at least democratic in his verbal assaults. When he questioned our lawyer regarding the original concept of the band, things got ugly.
Our lawyer: “The band name itself was created by … “
Judge: “I didn’t ask you the name!”
Our lawyer: “The concept, yes … “
Judge: “Don’t toy with me, sir! You’re going to have a bad hair day in this courtroom!”
How a blind judge would know the difference between a good or bad hair day was beyond me.
On our second day in court, our whole faux French thing continued to be a source of confusion for the judge (“What does ‘ennui’ mean?”). And at one point during questioning, he remarked, “This is painful.” By the end of the day, he was so annoyed that he strongly suggested the fight might not be worth the effort and that we “might be better off doing something else.” Nonetheless, we were told to return to court at 9:30 a.m. on July 18.
It quickly became clear we would be spending a lot more time in court, and a lot more money in legal fees (we had already spent more than $8,000). Ferrand had all the time in the world—he represented himself.
So, in the true spirit of France, we surrendered. We turned over the band name and Web site to Ferrand. We kept our faux French identities (Jean-Luc Retard, Céline Dijon, Cal D’Hommage, Maurice Chevrolet, and Harry Covert) and formed a new band, … Nous Non Plus, meaning “us no more” or “neither do we.” We recently completed our first album with songs about love and lawn care and played a sold-out New York show.
If we’d had the resources to continue the legal battle, would we have won? We’ll never know. Should we have signed an agreement a long time ago, so that this didn’t have to be settled in court? Probably. Does losing the band name mean completely starting over? The jury is still out.