By CP Staff
By Olivia LaVecchia
By Chris Parker
By Jesse Marx
By John Baichtal
By Olivia LaVecchia
By Jesse Marx
By Olivia LaVecchia
In 1994, a year after Prince changed his name to an unpronounceable symbol, David Magdziarz was sent a disk containing the symbol font along with instructions that stated the symbol "is now the Artist's legal name and should be used whenever referring to him in print." The disk was defective and Magdziarz asked for a replacement; it soon arrived, with a handwritten note from Prince's PR firm that said, "David--Hope you have better luck with this one." Magdziarz never figured that five years later that disk would land him in the middle of a legal battle.
For years after first catching the Prince bug in 1991, Magdziarz traveled regularly, sometimes weekly, from his Chicago home to Minneapolis to catch shows and purchase memorabilia at the Artist's New Power Generation store in Uptown. His home office is a veritable minishrine to the Artist, containing more than 500 Prince-related records and a napkin he swears holds an original sketch by Prince. Since 1993 Magdziarz has also been a contributor to the fanzine UPTOWN (www.uptown.se/99/), founded in 1991 by Swedish fans and dedicated--according to its mission statement--to covering Prince "in a serious, journalistic manner, without the fawning 'Oh, isn't The Artist God' attitude." In his contributions to the publication, Magdziarz offered in-depth analyses of Prince lyrics based on his knowledge of medieval and reincarnation-related art, a background without which he says the Artist's work is easily misunderstood. "A lot of people interpreted 'Pussy Control' as a pure sex song," Magdziarz says, explaining one of his reviews. "But Prince was just using a lot of double-entendres. If you listen to it long enough, you'll realize it's about a character named Pussy who's taking control of her life and won't let herself be abused."
This March, though, Magdziarz encountered another form of control: He received notification from his coeditors in Sweden that UPTOWN was among nine fan Web sites and two zines against which Prince had filed trademark and copyright infringement lawsuits in New York federal court. In documents filed with the court, the Artist alleged that the publications had "willfully and maliciously infringed... copyright [through] unauthorized uses of the symbol" (which had been copyrighted in 1997 under the name Love Symbol #2) and "the Artist's name, image and likeness." The suit specifically charged UPTOWN with "willfully, deliberately, and knowingly" attempting to appear as an official magazine of NPG Records, the Artist's label, and it asked that all the fanzines be ordered to stop publishing and pay compensatory and punitive damages.
Dave Koehser, a Minneapolis copyright lawyer who specializes in print and Internet media, says that during his ten years in practice he's never encountered a lawsuit like Prince's: Typically, he explains, artists consider fanzines a kind of free advertising. "If it's not defamatory and it's not making any money, the only thing it could be doing is raising publicity," Koehser says. "And there's nothing that's going to help you sell CDs more than publicity."
When he first heard of the lawsuit, Magdziarz says, he was equally befuddled. For a while, he refused to believe Prince was serious. But after a few sleepless nights and dozens of e-mails to Sweden, Magdziarz realized that, faced with the prospect of a court battle against the Artist's well-financed legal team, the zine might have to shut down. (As it stands, UPTOWN and a site offering transcripts of Prince lyrics--www.dttlyrics.com--are the only two among the eleven defendants still maintaining a Web presence.)
Then Alex Hahn, a Boston lawyer who is an avid Prince fan and follows fanzine and Web sites dedicated to the Artist, offered to represent UPTOWN on a pro bono basis. He crafted a defense arguing that zines are protected by the First Amendment; he also argued that the Artist abandoned his copyright to Love Symbol #2 by distributing the font to the news media. Photographs used in the magazine, Hahn says, were legally obtained, and many were publicity stills sent directly from the Artist's former label, Warner Bros. As for Prince's claims that the fans sought to get rich at his expense, Hahn says, last year UPTOWN--whose print circulation hovers around 2,000--ran at a loss of about $1,000. "These are not a group of guys setting out to make money off Prince's image," says Hahn. "These are people who in their free time are putting together a magazine in attempts to glorify him."
The Artist, however, disagrees, according to press representative Lois Najarian. "He can tell the difference between a fan site and when people are trying to make money off his image," Najarian says, noting that UPTOWN occasionally runs advertisements for its unauthorized Prince biography, Days of Wild, which sells for $50. "They write solely about the Artist and receive financial gain," she adds.
Michael Elkin, one of Prince's attorneys at the New York firm Thelen Reid & Priest, says he's not impressed with UPTOWN's defense. "It's convenient for them to hide behind the First Amendment when those issues are totally inapplicable," he says. "The lawsuit is about whether the Artist's image and likeness and his entire body of work can be siphoned off by people who refuse to pay or properly acknowledge this great man."
But John Sumners, an attorney with the Minneapolis firm Merchant & Gould who teaches copyright law at the University of Minnesota, says Prince's legal claim seems dicey. Trademark law does allow artists to stop others from using their image solely for commercial purposes, he notes, but it is difficult to distinguish between commercial ventures and First Amendment-protected news coverage. Most media outlets, Sumners adds, are commercial entities, and that does not prevent them from commenting on celebrities. "It would be pretty extreme if Prince were able to shut down this magazine and control the press," Sumners says. "In my guess, he won't be able to."
If Prince does succeed in shutting down the fan sites, argues one music-industry veteran, the pocketbook he really hurts could be his own. Ron Herbert, an Atlanta-based record promoter who has worked with Mariah Carey, Tom Petty, R.E.M., and Prince, says the move seems odd for an artist whose record sales have been declining since the late 1980s. Die-hard fans, says Herbert, have been essential to the long-term success of artists like Jimmy Buffett and the Grateful Dead: Without devoted followers, he says, "first your touring dries up, which causes your record sales to dry up--then you're the VH1 story of the week.
"I would be advising Prince not to sue [his own fans]," Herbert adds. "But Prince is one of the smartest guys I know, and he has the best people working for him. There just has to be more to the story than what you and I know."
Diana Dawkins has an inkling as to what the rest of the story might be. The Massachusetts-based business consultant began publishing a biweekly newsletter called The Prince Family after losing her job at the official Prince magazine, Controversy, when the publication shut down in 1992. Two years later, Dawkins says, NPG Records management asked her to help coordinate a new effort that would bring fanzines and Web sites under the umbrella of a Prince-led venture. She declined, saying she preferred to remain independent. But other zine publishers took up the Artist's invitation, and in 1997 Prince launched love4oneanother.com--a compilation of fan sites overseen by a group of coordinators referred to as "The Collective." In an interview posted on the site, Prince explained: "My own personal objectives [for the site] change daily... that is y eye defer 2 the people at Paisley Park that eye love and respect the most. 4 me the initial objective was 2 have a visible place 4 my thoughts."
Dawkins, however, says she suspects that the Artist's true goal was to control his fans. "If he sees his picture in print, he wants to know that he gave permission for that," says Dawkins, who considers the recent lawsuits part of a plan to eliminate competition to love4oneanother.com. "It's a sickness. Prince is always talking about love and charity and peace, but if you follow it to the end, his words usually turn out to have the opposite effect." Although Dawkins is not a defendant in the recent lawsuits, she says she quit publishing her newsletter after hearing about the case; she is currently auctioning off her entire Prince collection through her Web site (members.aol.com/princefam/index.html).
Najarian, the Prince spokeswoman, rejects Dawkins's theory. "That's been one of the main lies that has been perpetuated," she says. "There were only good intentions behind the formation of love4oneanother. It was sort of like, 'Hey, all you people doing fan Web sites out there, let's dedicate ourselves to the truth."
For the time being, UPTOWN's lawyers say they would like to pursue the truth through the courts. In April the zine countersued Prince, claiming that his suit is an attempt at "eliminating economic competition [and] securing a monopoly for the love4oneanother Web site... and stifling free expression" through a "malicious abuse of process." The attorneys have also filed a motion demanding that the Artist appear for a deposition in New York on June 25. Traci Bransford, the Paisley Park Enterprises corporate lawyer, says Prince is fighting the motion and is confident he won't have to make his case under oath. But Hahn argues that recent precedent suggests otherwise: "If the president of the United States can be deposed," he offers, "then so can Prince."