Eyes Wide Open

by Andy Powell

  UPTON: Of which Martin Turner has a right—as an asset of the original band and the goodwill, he has a right to that.

  HARRIS: I suggest to you that in fact it would cause just as much confusion as any other form of use of Wishbone Ash.

  UPTON: I don’t know. Do I answer that? You’re suggesting it to me. Well, if Wishbone Ash as Martin Turner’s Wishbone Ash is going out, he’s specifically stating what it is.

  CAMPBELL: Mr Upton, perhaps I can try and short circuit this. I think what Mr Harris is suggesting is that if you go back to 1983 you wrote all these cease-and-desist letters to Ted Turner and you have explained that the reason you did that was because you experienced a lot of confusion at venues. Promoters were unhappy that they were having one band and then the other. Now, what Mr Harris is exploring with you is doesn’t the same thing happen when you have Martin Turner doing—as Mr Harris would have it—doing the same thing. OK?

  Wrapping up his cross-examination, my counsel asked Steve whether there could have been any reason, in 1994, for me to think that he had any objection to my continuing to perform and record as Wishbone Ash.

  UPTON: I don’t know what he would assume.

  HARRIS: But you knew at the time he was continuing with Wishbone Ash?

  UPTON: At which time?

  HARRIS: 1994.

  UPTON: I had very little contact with him then so I really didn’t know what he was up to.

  Well, he surely must have known what I was ‘up to’, because he was continuing to earn royalties from all the live work that was going on through the years. All the ex-members are in the PRS (Performing Right Society), and all the work I’ve been doing—thousands of gigs, all over the planet—has been generating a steady income on an annual basis for us all.

  I had been with Steve in the band when it was just him and me: after Martin and Laurie left, we were Wishbone Ash. There were a number of years where we both had young families and were both struggling financially. We managed to skirt bankruptcy, we paid off the debts, we worked bloody hard in far-flung places together to do that; we went through a lot of angst and grief together, but all of that was now by the by. I had counted on Steve as a friend. I thought we were friends. But it was greatly apparent to me in court that we were not friends and we never would be again. That contributed to the overwhelming melancholy of the experience.

  Steve leaving the band back in 1990 had coincided with a marriage breakup. I think he left the band a really bitter man but bitter not just about the band but about many, many things. It’s a matter of great sorrow to me that somehow I became wrapped up in his mind with what was obviously a period of his life that he associated with anger and regret. For many years after that, I’d found it odd that Steve had denied even the fact that I’d helped him, when he left the band, to get a job at my recommendation, running Miles’s estate. Now, he seemed to me to be embarrassed and ashamed to even be in court; some friends saw him sitting outside the courtroom with his head in his hands. I felt sorry for Steve—he just didn’t belong there.

  Ted’s performance in the witness box seemed like an exercise in vagueness. Here was a man staring at the ceiling, perhaps hoping to find there something to say that might be in some way relevant. Like Steve, he looked as if he didn’t really want to be there. It was noticeable that Steve kept disappearing from the room, and when the proceedings were over he literally ran out of the court. I don’t think that any of them looked as though they were in the same band or that they were in any real sense ‘together’.

  Martin’s booking agent, Don McKay, tried to explain in his evidence that he absolutely couldn’t see that if the words ‘Wishbone Ash’ appeared on a poster in bigger font than the words ‘Martin Turner’ that this might in any way mislead the public. Even he conceded, though, that a handful of times per year—despite his agency specifying that the qualifier ‘Martin Turner’s’ be used—promoters would ignore this and simply bill the act ‘Wishbone Ash’. Oddly, both Don and later Martin, under cross examination, tried to argue from two standpoints that seemed to have a built-in absurdity. They felt that adding the qualifying words ‘Martin Turner’ to ‘Wishbone Ash’ was important because of Martin’s reputation as the ‘creative force’ from the band’s glory days, and because of his subsequent reputation as a solo artist … and yet it was simultaneously crucial to use the words ‘Wishbone Ash’ because that meant people might actually turn up. Did Martin have a reputation on his own merits, or was it just hubris?

  Hana Cunningham, an ex-girlfriend of Ted’s who presented herself as our ‘manager’ from a brief period in the early 90s between Steve leaving and then Ted leaving for the second and final time, had nothing to say that was relevant. Her presence seemed to revolve around vague and half-baked attempts to besmirch my character, which had no foundation whatsoever. She said that I had borrowed some money from her to buy a house; when she was asked how much money it was, she couldn’t remember. At one point in her testimony, there came another drily amusing intervention from Mr Recorder Campbell:

  CAMPBELL (TO CUNNINGHAM): Do you have a clear recollection?

  HEAL: The answer is either yes or no.

  CAMPBELL: I wonder which it is going to be?

  In the end she just walked off the stand in embarrassment and stormed out, never to be seen again. Everybody was left wondering, What was that about?

  Finally, at the end of the day, Martin Turner presented himself to the court. And no doubt felt that the court would melt like ice cream before his raffish charm and ribaldry. It didn’t.

  One of the basic rules of appearing in court is respecting it. I certainly don’t wear a suit every day, but there are occasions when formal dress is appropriate. One contribution Martin made when he got in the witness box—having opted to stand up throughout, when everyone except Ted and him had been happy to remain seated—was to explain to the judge and my counsel that ‘this is not my normal attire’, which felt, to me, disrespectful. It set the tone for a kind of sneering, swaggering disparagement and demeanour throughout what was to be a long and rambling testimony. Just like the meeting in Leeds, Martin seemed to be treating the whole process as a bit of a joke. And I don’t think that was lost on the judge.

  It also became clear during the questioning that Gary Carter had been writing some of Martin’s online statements, after my counsel, Mr Harris, quoted a line from Martin’s website: ‘Disagreements over group policy and musical direction led to Martin reluctantly resigning from the band in 1980.’

  TURNER: Well, that is not accurate.

  HARRIS: But this document is endorsed by you.

  TURNER: Well, it may have been but I certainly didn’t write it.

  Setting aside the sheer import of the thing, and the fact that it was costing huge sums of money, Pauline and I found a kind of gallows humour in that second day. It was great entertainment, almost like a movie—you could have filmed the whole thing. We kept looking at one another: Did he really say that?

  In many respects there was always this tension and conflict between Martin and me. We have never been friends, only bandmates who shared common goals for a time. And creatively we were able, for that time, to find a dynamic that worked—we could play off each other, and we produced some great work, for which we can both be proud. This kind of thing is not uncommon in bands. People have said the same for years about Jagger and Richards in The Rolling Stones, Lennon and McCartney in The Beatles, Townshend and Daltrey in The Who. Sometimes you need a bit of grit to create a pearl. The trick is sustaining the kind of partnership which, on purely social terms, would ordinarily never last. In the early days, our first manager, Miles Copeland, managed all of this in a very astute way. Miles would never allow Martin to speak to the press, for instance, because most of what came out of his mouth was off-message. He was a contrarian. I suppose he tried to be the John Lennon of Wishbone Ash. But we can’t all be that smart.

  To my mind, Miles had created the band out of nothing, and it became something significan
t only under his influence, his positivity, and his drive. With his involvement gone our paths inevitably diverged. There were a lot of artists in the 60s and 70s who saw their managers as father figures, just like Brian Epstein was with The Beatles at the beginning, and Miles was like that in some ways for these guys. He was like that for me, too, until I grew up. There was something very endearing and inspiring about him. In the early days it was ‘all for one, one for all’. We were all young men and we were all going into this world together. Now, however, none of us, as far as I know, approached Miles to be a witness. I don’t know why that was. I wonder what he would have made of it all?

  Martin, given his soapbox, went to great lengths to tell the court that he was an artist while I was a businessman. I don’t think that washed, on either count, for a minute. Firstly, if he wished to establish credentials as an artist, where was the evidence? The claim could hardly be substantiated outside of his Wishbone Ash career, because there simply isn’t a body of work. Secondly, in trying to label me a businessman he was apparently assuming that everyone would boo, hiss, and point their fingers—immediately identifying me as a pantomime villain, a caricature philistine smoking a fat cigar, guzzling steaks and counting piles of cash while the truly creative people, like him, were out there rocking and sticking it to the man. Martin evidently thought ‘the man’ was me.

  For a start, this whole stance was an embarrassing anachronism; more importantly, this was a case that was not about creativity—it wasn’t, for instance, about plagiarism or disputes over publishing credits—but about business: his and mine. It was irrelevant which one of us reckoned ourselves to have more cred as a flag waver for the values of the 60s counterculture.

  Am I a businessman? Not in any pejorative sense; not if it has those emotionally charged little speech marks around it. What I am is a working musician—an artist with a body of work—and I run a business. It’s called Wishbone Ash. Martin, Steve, and Ted used to run it with me. We were all businessmen. And then there was just me. And I kept running the business.

  In Martin’s mind, a musician cannot be a businessman, which is both out of touch with and disrespectful to every professional musician on the planet. Today’s musicians have to be self-promoters. The infrastructure of the professional music world has changed beyond all recognition within the space of a generation. The vast majority of professional musicians operate as cottage industries now: self-reliant, savvy sole-traders or limited companies or legal partnerships, where once they would have been a gang of free-spirited gunslingers periodically underwritten by fat advances from a label or a publisher, or a stipend from a patron or manager—overgrown teenagers given a license to career around the world as semi-salaried spokesmen for alternative lifestyles. These days, no matter your level of talent, if you don’t have a grip on deal-making, taxes, insurance, multi-platform communications, publicity, endorsements, travel arrangements, and any number of other wheels that need to be oiled on a regular basis, you will almost certainly not be able to build or sustain a viable career in music.

  With Martin, there was a clear sense of entitlement. You do need a lot of ego to get up there in front of a band and to sing your songs, but that same ego can also be your greatest undoing. I believe Martin to be an example of what happens when ego gets out of control. Swaggering around onstage is one thing, but in a court of law it was incongruous, inappropriate, and frankly embarrassing. He was the kingpin of a trio of disparate individuals who had presented themselves in a twenty-first-century courtroom like visitors beamed in direct from a half-remembered past: two befuddled backwoodsmen and someone occupying a space that brought to mind Norma Desmond from Sunset Boulevard; three people who didn’t even belong together anymore, and who, it seemed to me, couldn’t really understand what it was they were fighting for.

  * * *

  In amongst all the flimflam it would have been easy for a casual observer sitting in on those two days in court, certainly during the second day, to have lost track of what it was all about. The crux of the matter was that I had applied, in good faith, for a trade mark for the band’s name way back in 1998. That trade mark was granted in 2000.

  One of the interesting things about the detail of that trade mark is that it encompasses ‘entertainment services by stage production and cabaret’. Thus, were I ever to appear under the banner of Wishbone Ash wearing a velvet suit and playing medleys of Barry Manilow hits in a Yorkshire workingman’s club or a third-rate lounge bar in Las Vegas, I would—aside from being quite clearly at an advanced stage of a career-death situation—be entirely protected from people ripping off my act. Whether anyone would wish to do so is a different question. On the other hand, the trade mark specifically does not grant exclusivity in the event of Wishbone Ash producing a children’s television series. Which is one of two reasons why the world has never seen a show called Thomas The Tank Engine Meets Wishbone Ash.

  These hypothetical byways aside, we had the trade mark, and that was really all there was to say about it. We had done our best to explain the background, to argue infringement, and to provide evidence of public confusion and impact on trading linked to Martin’s use of the name. We could only get on with life and wait for the judgment, which was due in a matter of weeks.

  * * *

  Rock music and litigation are fairly regular bedfellows. The fast and loose nature of the business during its first twenty or thirty years in particular, from Elvis Presley’s first record to Status Quo’s first Farewell Tour, left plenty of ragged edges, dropped balls, and papered-over cracks, all ready for the legal profession to scrutinise forensically in the years following. Some of the better-known early cases had been concerned with the authorship of songs—George Harrison vs The Chiffons (‘My Sweet Lord’); John Lennon vs Chuck Berry (‘Come Together’); various people versus Led Zeppelin (none of those came to court, but one or two publishing credits were quietly altered).

  Cases concerned with the ownership of band names are a more recent development. Numerous other trade mark disputes had been cited in our court case, and several would return for an encore in the eventual written judgment. Among them were issues involving people selling washroom products, energy drinks, and chocolate rabbits. One case that kept coming up was a particularly complex one involving the company that runs the Orient Express and the associated Hotel Cipriani in Venice against a man called Giuseppe Cipriani who operated a restaurant in London (a dispute in which my legal team acted for the successful party). It’s far too mind-boggling to try to summarise the ins and outs of that one here, but it seemed to be pretty significant in the case law.

  Back in a world that was a bit easier to understand, a handful of previous band-name disputes that had ended up in court were cited: Bucks Fizz, Frankie Goes To Hollywood, The Animals, Saxon. By coincidence, the latest round in the Animals saga was taking place the very same month as the Wishbone Ash hearing. One of the key aspects to it—an appeal by singer Eric Burdon against a previous judgment affirming drummer John Steel’s ownership of the trade mark (as of 2004)—was its exploration of the nature of ‘goodwill’ in the brand of a supposedly ephemeral musical act.

  The original Animals had enjoyed the last of several reunions in 1983. For twenty-odd years after that, various line-ups of bands appeared with the word ‘Animals’ in the name (Eric Burdon & The New Animals; Eric Burdon & The Animals; The Animals II; The Animals & Friends), fronted by either John Steel or Eric Burdon. Some of them, inevitably, ended up on venue posters as just ‘The Animals’, which confused people. Burdon objected to Steel in 2005, and the thing got to court in 2008. The judge on that occasion decided that the ‘goodwill’ in the name had long since run out by that point, and consequently any of the ‘last men standing’ (a legally understood term that crops up in the judgments of many of these sorts of cases, including my own) from the 1983 reunion was eligible to trademark the name for themselves. Which is exactly what John Steel had done.

  One gets the impression that the judge in that he
aring had been somewhat exasperated by Burdon and his representatives. In his judgment, he wrote:

  The opponent seems to contend that he is, at least in his own mind, a rock and roll legend whose mere existence serves to keep the goodwill in the original band alive. He is I am afraid mistaken. His counsel described him as ‘the charismatic lead singer and songwriter who has captivated the hearts and imagination of generations upon generations of teenagers the world over’ and also stated that ‘no one remembers the drummer’. As to the former, this was not borne out by the evidence provided and with regard to the latter I trust that she does not encounter Ringo.

  The reference to Ringo wasn’t quite as fatuous as it seemed (or as the judge had intended it to be). John Steel’s group, The Animals & Friends, is a similar outfit to Ringo Starr & His All-Starr Band: a loose assemblage of various vintage musicians with a hit or two to play, working within a group based around a drummer who needed them as much as they needed him. One suspects, though, that Ringo’s act plays bigger venues than the Spotted Dog in Willesden—scene of ‘The Spotted Dog incident’, as referenced in Eric Burdon’s appeal judgment of September 2013. The publican of said premises, back in 2006, had booked The Animals (Burdon’s band name that month) and ended up with The Animals & Friends (Steel’s), and he wasn’t happy about it. It had been an administrative error: astoundingly, both acts were represented by the same agency.

  The 2013 appeal judge (whose views on whether Burdon was or remained a ‘legend’ were not recorded) ruled that goodwill in the name had not, in fact, run out when Steel applied to register the trade mark: a truth to which the constant stream of Animals CD reissues, clips in retro TV shows, and appearances in magazine lists of the 60s’ greatest this or that would surely attest. The goodwill, he felt, rested with no individual member, hence neither Steel nor Burdon could trademark the name.