Frank Zappa, Captain Beefheart, and Musical Trademarks
Frank Zappa is a legend in the history of contemporary music. In the 27 years before his death in 1993, he released a mind-boggling 62 studio albums, just over two a year every year. These albums included the critically acclaimed Freak Out, which can lay claim to being both the first concept album and one of the first double albums in the history of music. The man was nothing short of a musical genius but his wife has proven to be notoriously litigious, even going so far as to once sue a small German town for having erected a statue of Frank in their city square (fortunately for the small town, the suit was dismissed by the court as being frivolous). Gail Zappa even filed an application to trademark the name Captain Beefheart just last year. Captain Beefheart was the stage name another musical legend, having made the critically acclaimed blues album, Trout Mask Replica, but well before that he happened to be friends with Zappa in his teens. During this era of friendship Zappa even gave the name Captain Beefheart to the musician, which is probably why Gail was ultimately allowed to claim trademark protection over the name when the application was approved just last week. During his life, Zappa had made a handful of attempts to sue Don Vliet (birth name of Captain Beefheart) for control of the name, but his suits never amounted to anything and Vliet was allowed to retain the rights to the name. However, Vliet passed away in 2010 and it now seems that the US courts have finally allowed the Zappa estate to have ownership of the Captain Beefheart name. This raises many questions for fans of Captain Beefheart such as what will happen to the discography of the famed musician? Some believe that the Zappa estate must already have ownership of the Beefheart estate in order to trademark the name, but others aren’t entirely sure if that is the case. If it’s not the case, will the Beefheart estate need to lease out the name in order to continue putting out records or will Gail Zappa just stop the production of Beefheart records entirely? And what will become of the past records? Will they be allowed to continue carrying the name “Captain Beefheart” on them or will these older discs need to be removed and replaced with new discs that have a new name for the same artist on them?
The case gets even stranger as it seems that the Zappa estate doesn’t have plans for the records themselves, as the trademark was filed under the “Computer & Software Products & Electrical & Scientific Products” category and only contains specific mentions of ancillary products like sunglasses, video games, and digital phone graphics. However, there are still sharp-eyed critics out there who have noted that this category still leaves open the possibility that Gail Zappa can take control of digital sales. What specifically will happen to the Beefheart estate is known only to Gail and her team of lawyers but it does seem that she’s attempting to wrest control of the estate away from Vliet’s widow. When we remember that Captain Beefheart was a moniker given by a teenager to his high-school friend only for that same moniker to be taken back by his second wife long after both of the men originally involved in these events have passed away, it seems absolutely incredible that long after these two men are dead, there could still be litigation about whether or not one of these men had any right to use the name that the other man came up with. Moreover, it seems incredible that someone not involved with the Vliet estate could potentially control the entire estate of that artist just by owning the rights to his stage name. After all, if the Vliet estate is not allowed to use the Captain Beefheart name, then how are they to manage the various Captain Beefheart products, including the discography and royalties that are copyrighted to Vliet but are performed by Captain Beefheart? This issue is shaping up to be contentious for music fans everywhere and could have a great effect on the future of intellectual property rights. Is owning the rights to a man’s stage name the same as owning that man’s entire body of work? Only time will tell since these events are still fairly new and so they are still taking shape, but it will be interesting to see how this particular case develops and of what importance it will have on the future of trademark legislation and litigation.
Kevin James
Intern
JAFARI LAW GROUP®, INC.