Eyes Wide Open

by Andy Powell

  * * *

  On Thursday September 19 2013, the four founder members of Wishbone Ash donned uniforms of sobriety and turned up in court, the latest in a long line of sorry music-business litigations that everyone else can read about in a brief news item on page twelve of the London Times or the Washington Post and think, ‘Dear oh dear, what a shower …’

  It’s funny: no one would think that about intellectual-property disputes between those who manufacture goods or provide services, but when it involves musical artists, the gut reaction is to think of words like ‘gold-diggers’, ‘has-beens’, ‘whingers’—be it Mike Love claiming the authorship of this or that line in Brian Wilson songs written half a century ago or a steady trickle of rival versions of Bucks Fizz, Saxon, The Animals, Barclay James Harvest, Showaddywaddy, Sham 69, Racey, and whoever else. I suppose it’s because music is based on emotional connection—when people see something tawdry happening to a name they associate with something intangibly bigger and more resonant to their lives—even their lives in the past—than competing brands of toilet tissue or hamburgers, it feels like a betrayal. It’s slightly illogical, but I understand it completely. I would feel the same—and when it came to my own band, I most certainly did feel the same.

  I ended up sitting at the back of the court simply because Pauline was sitting there and I wanted to sit with her. I didn’t actually give it any thought, and I didn’t know what the protocol was—that this was like an American-style court where you sat on benches and you could sit with your counsel.

  There are six fans with whom we communicate on a regular basis, and it was wonderful to see that they had all turned up there for the duration of the case to give moral support. Carolyn and Chris Wright, Simon Atkinson, Colin Hargreaves, and witnesses Keith Fox and Guy Roberts joined us for lunch each day. The interesting thing here was that some of these six had never actually seen the original band. They were curious to see what the guys were like. There are quite a lot of fans like that now. Conversely, I had a woman turn up in Toronto recently with an original fan-club membership card—an original fan who’d never had the opportunity to see the band back in the day but who had followed the music from a distance ever since. The richness and diversity of the fan community really is the lifeblood of Wishbone Ash—and, I would imagine, the same is true of most bands and artists with decades on the clock. It doesn’t surprise me that the likes of Neil Diamond and Cliff Richard, however critically panned their careers may have been (even if Neil’s almost fashionable these days), have an extremely hard-core element to their fan bases.

  Curiously, none of the original guys in Wishbone Ash—at least, as far as I’m aware—had ever really invested any time outside of the band in getting involved with the fan community. We had invited Martin along to a fan-club convention once; he came along, sang some songs, and left with a kind of a bitter taste in his mouth because we hadn’t done all the songs we had said we were going to do. I think that Martin expected to just come back and be a conquering hero, but it wasn’t like that, because he’d not really invested any time with the fans. You can’t leave something for twenty years and then suddenly expect it’s just all going to be the way it was when you’d left. But I think that sense of entitlement was common to all the guys who came to court from the original band: they just assumed that the judge was going to take their view of the world as it was. It was extremely naïve.

  Ten witnesses, including myself, took the stand on day one for my claim; Martin and his witnesses appeared on day two.

  I was up first. I had thought a lot beforehand about the kinds of things I might be asked, but all of that goes out the window when you get on the stand. It’s a discombobulating environment: you just have to speak the truth as you know it. Being first on, and not knowing the protocols, I was probably far more concise than I could have been. Others in the witness box after me at least had an idea of how the process worked. Certainly, the loquaciousness Martin Turner displayed as the last witness of all would suggest that by that point the once unfamiliar and imposing scenario had entered the realms of a chinwag down at the golf club. I daresay any dispassionate observer to both days would come away thinking I was Mr Serious and Martin was a clown.

  The judge, Douglas Campbell, is a man in his mid forties with extraordinary credentials: first class honours at Oxford University in chemistry, top distinction in law at City University, proficient in Japanese, a brown belt in karate, and governor of the Contemporary Dance Trust in his spare time, when he wasn’t advising governments on intellectual property matters or dealing with old rockers who’ve thrown the rattle out of the pram. He was engaged and inscrutable throughout, never letting on if he was familiar with any of the music, although I did get the feeling that he at least knew who we were, the type of band that we were, and the period that we were from. I think he had a good sense of what bands meant in those days and what they mean now. Certainly, the historical preamble in his published judgment would give Pete Frame and his Rock Family Trees a run for their money in terms of clarity and accuracy—and all in plain English, too.

  Presenting my case was relatively simple. It was based around two central issues: Martin’s use of ‘Martin Turner’s Wishbone Ash’ as the name of his band, and his use of the domain name wishboneash.co.uk—specifically, using it to promote the activities of Martin Turner’s Wishbone Ash as opposed to it being purely a resource for historical information. Key to establishing whether the trade mark had been infringed was whether there was a likelihood of public confusion over the two entities trading as ‘Wishbone Ash’, and also whether the ‘goodwill’ associated with the band’s reputation in the marketplace resided with me at the time of application, and whether that application was made for reasons other than a malicious disenfranchising of any previous members who had an active interest at that time in maintaining the brand themselves.

  Martin’s barrister, Madeleine Heal, was pretty robust in her style, but she seemed not to be totally conversant in some of the details of the band’s history, or the music business in general. At one point she seemed to get mixed up between the album Illuminations and the boxed set Distillation. I had to gently interject to point this out. Later, Ms Heal and I had a lengthy exchange about the relative sales figures for albums released at different points in the band’s career, during which she seemed in my view to be suggesting that our more recent work was of lesser importance because it had sold in smaller quantities. After I had established that our most recent album at the time, Elegant Stealth, had sold in the region of 25,000 copies, by comparison to Argus’s sales in excess of 800,000, the conversation turned to New England, released in 1976, by which point, I noted, sales of the band’s albums had begun to wane significantly.

  HEAL: So, if the sales for Argus were 800,000, were the sales for New England 500,000?

  POWELL: No, I’d probably say a third of that, maybe.

  HEAL: About 250,000?

  POWELL: Maybe, yes.

  HEAL: Around there.

  POWELL: Possibly, worldwide.

  HEAL: Worldwide, but certainly a very great deal more than 25,000 which Elegant Stealth has sold?

  POWELL: Yes, absolutely. That goes for every band of that era. The sales of discs now are—for example, the latest David Bowie CD, which reached number 1 in the US charts, it did that on sales of 94,000 CDs, and Mick Jagger, one of the biggest rock stars in the world, he produced a solo album a few years ago and I think he sold 900 copies in the UK. So, the sale of actual hard discs has just plummeted. You know, our business has been decimated in the last few years as far as the sale of discs; you know, everything is downloaded now.

  Next up was Guy Roberts, a company director who has been a fan of the band right from the very beginning, and who has been a constant help with all sorts of things: merchandising, the website, almost all of the fan club conventions we’ve ever done. He was calm and clear about the things he remembered, including Martin’s apparent lack of interest in the band at the time. He a
ffirmed for the court part of his written statement:

  I invited Martin in for a cup of tea and we had a conversation. During the conversation we got talking about Wishbone Ash and Martin said to me, ‘I don’t know why Andy still bothers but if it wasn’t for him Wishbone Ash would have died years ago.’ It appeared that he couldn’t believe that Andy had actually carried the band on.

  There was, in retrospect, quite an amusing moment when Ms Heal, who was trying at length to establish what effect Wishbone Ash’s continued existence had on interest in its back catalogue, brought up The Beatles.

  HEAL: And the Beatles have now completely disappeared, have they?

  ROBERTS: Two of them have.

  Shortly after Guy, Martin Looby, my agent from the early 90s, and Andy Nye, my current agent, gave evidence. They were phenomenal. Andy had a mass of relevant facts and figures at his fingertips. He could graphically demonstrate how Martin’s operation had usurped certain venues in which we had been building up an audience over many years. Martin Looby could testify about Martin Turner asking him in the mid 90s if he could help him with a solo career.

  We had invited Martin to play on the Illuminations album in 1994. We even went to a recording studio with him—and it was a disaster. Martin physically couldn’t play the bass and awkwardly bragged how he hadn’t picked it up in years, it having been stashed under the stairs at his home. Bass playing and singing were out of his range of abilities at that time, because if you haven’t been performing frequently, you can’t suddenly go into a studio and do it. He did, however, fill in for us on bass during a tour after the album had come out, on a temporary basis, and had been perfectly happy with that arrangement. So there were lots of things like that which made it clear that I had made overtures to Martin, tried to be inclusive, but that he was of the mindset that he couldn’t understand why I still continued as Wishbone Ash. It was, in his mind, a waste of time.

  We had a really fabulous witness in Nicola Bowden, manager of the Mick Jagger Centre in Dartford, Kent. She took the stand and said that if she books a band under the name Wishbone Ash, she expects it to be Wishbone Ash as it is legally known.

  HEAL: [Mrs Bowden] if you understood that a band called Martin Turner’s Wishbone Ash was more likely to fill the Mick Jagger Centre than a band called Wishbone Ash that had Andy Powell playing, you would choose Martin Turner’s Wishbone Ash, would you not?

  BOWDEN: No, I would choose through research the name that gives the stronger opinion of the original line up. We have many acts, from The Animals, The Troggs, many bands that have been around for many years, but each time it’s only ever one band. You wouldn’t have The Troggs with another name in front of it, you wouldn’t have The Animals preceded by the name of another artist. You would have the main name; you wouldn’t have George Michael with another name. You would have the band name, you would have the product.

  It had turned out that the last time we’d played there, Martin’s agent had cannily booked ‘Martin Turner’s Wishbone Ash’ into a club down the road around the same time—obviously hoping to tempt people away. Explaining that she regularly rebooks acts at two year intervals, and that this routinely delivers successful shows, she continued:

  We went from 599 to 383 [ticket sales] in two years. In the whole two years, no other act that I’ve booked had the massive decrease in ticket sales. Our profile hadn’t changed and Andy Powell’s profile hadn’t changed. There was no other reason why the ticket sales could have been so low apart … from Martin Turner performing in the same area in the same time…

  Nicola’s view was simple: if you book a band, you book the genuine legal entity. And she couldn’t be budged from that.

  We went to great lengths to get our webmaster, Leon Tsilis, into the process, as well as Kate Goldsmith, our US publicist. They had to jump through a lot of hoops because they were in the States, so gave evidence by video link. They had to go to a lawyer’s office to do it, but there were various technical issues. Leon ended up using his iPad.

  As well as being our webmaster, Leon was a US regional promotions person, and had been head of A&R for MCA back in the glory days. He was a straight-talker then and now. His testimony was amazing not only because of his forthright style but because it was on a big flat-screen TV in the courtroom. At one point he leant forward so that his face dominated the screen and said, ‘The other members had all quit, and in this country, when you quit something, you quit.’

  The court just went woooooaaaaaah—here was this huge disembodied face on this screen staring at everybody. It was so powerful. It was like something out of a movie—Just cut the crap, these guys all quit the fucking band! When it came time for my counsel to wrap things up on the second day, he said, ‘May it please your Honour, this is, in my respectful submission, a pretty simple case. The thing to remember here, I think, is that as Leon Tsilis put it yesterday, “Once you quit, you quit.”’ It was quite the moment.

  Kate Goldsmith gave some first-hand evidence about the way Martin’s band was being marketed in the States, and the confusion it was causing. Keith Fox, one of our fans from Yorkshire and a serving police detective, gave similar first-hand evidence of confusion he was aware of closer to home, and also expressed views about the musical quality of Martin’s act. Joe Crabtree, our current drummer, gave written evidence of how one of his drum students had seen posters in Spain for Martin’s band, with Martin’s name in tiny font, and how the student believed it to be the band featuring his tutor.

  I think Martin’s side were rather taken aback at just how strong our witnesses were. There was no waffling or irrelevancy: one after the other, they gave a clear, concise presentation of pertinent facts and figures. At the end of that first day, I felt very good about the way things were going down. My legal team weren’t leaping up and down shouting, ‘It’s in the bag!’ but they were very confident, very prepared, and very business-like. At this point, at least, there were no negatives. What would the second day bring?

  * * *

  Among the portents of better fortune as we began day two was the happy news that Martin Darvill was not there. Gary Carter, whose witness statements included all sorts of issues he had with me, didn’t attend either—which, I feel sure, saved the court a complete waste of its time. Laurie Wisefield had turned up to observe the proceedings, supporting Martin. It felt as if someone had decided that, if a load of former members of Wishbone Ash showed up in court, the judge would think, ‘Gosh, you guys are obviously all a team here, and Andy Powell’s the odd one out, so he loses.’

  Three of the remaining five from Martin’s team from whom the judge was to hear were, of course, Steve Upton, Ted Turner, and Martin himself. I felt sad when I saw them all take the stand, one by one—sadness and pity for them, for the name of the band, for all that we had done together. There seemed to me to be a large element of desperation and befuddlement in the way they were trying to represent themselves—and a complete detachment from the modern world.

  My career has had a beginning, a rise, a peak, and then a decline, a long tail, and then a bit of a rise again—enough to feel that I’ve withstood everything that the game has thrown at me. I felt, however, that my ex-bandmates were disconnected—certainly from the nature of the modern music business—and I thought that was a shame. I had this feeling that, even if the opportunity ever presented itself, there was no way I could sit down in a room and successfully explain to them what the band means to the fans currently, what we have gone through together and all of its recent history, because they just wouldn’t get it.

  Steve’s cross-examination, in the transcript, reads like something from a 50s British courtroom comedy, rife with confusion and misunderstandings and interventions and discussions involving the judge and both barristers. Part of the confusion came from Wishbone Ash having two former members known to the court as ‘Mr Turner’, but much of it came from Steve’s constant use of legal terms like ‘asset’ and ‘goodwill’. There seemed to be a disconnect between what
Steve understood these concepts to be and what the court did. At one point, Mr Recorder Campbell tried to hammer home the point:

  CAMPBELL: You are using words like ‘asset’ and ‘partnership’ and ‘goodwill’ and these may not even have been concepts that you were discussing back in the 1970s. Now, were you answering the questions on the basis of your current understanding of the position or how you thought it was at the time?

  UPTON: Well, at the time we were aware that we had a partnership. We were aware that we had goodwill created by that partnership and when one person left, which was Ted Turner, we had a new partnership and used the asset, the goodwill, Wishbone Ash, with a new partnership.

  And so it went on. Later, my counsel, Mr Harris, had a lengthy exchange with Steve about Ted’s use of the name Wishbone Ash in 1983, which had prompted Steve to send him a cease-and-desist letter, after which Ted ‘duly stopped’ using the name.

  HARRIS: So logically Martin Turner would be doing the same thing under Martin Turner’s Wishbone Ash wouldn’t he?

  UPTON: Well, I don’t know that Ted Turner went out as Ted Turner’s Wishbone Ash. He went out as Wishbone Ash, which is very different from Martin Turner’s Wishbone Ash.

  HARRIS: But the central part of the name is undoubtedly Wishbone Ash, isn’t it?