Ingber & Gelber, LLP

On the Roof or on Broadway, promoters pursue Drifters title

Pair head to court in rights fight
By Robert Rudolph
Star-Ledger Staff
Star Ledger 7/25/98

At Bill Clinton's first inauguration, one of the performing acts was The Drifters, the legendary group whose hits included "There Goes my Baby," "On Broadway," and "Up on the Roof."
When Clinton began his second term, "The Drifters" were again booked to perform.
Only the guys who showed up the second time around weren't the same ones who had appeared four years earlier.
So just who were those guys singing "Under the Boardwalk" anyway?
If you listen to Larry Marshak, the promoter of the group that performed in 1997, there is no dispute: They are "The Drifters." The problem is, some of the songs they performed were recorded before the members of Marshak's group were even born. In fact, Marshak actually has two groups, both known as "The Drifters" that play concerts on both coasts.
But, according to Faye Treadwell, the widow of George Treadwell, the man who managed the original "Drifters" when the group was formed back in 1953, Marshak's performers are nothing more than imposters using the name.
" Whatever it (the group) is, it's not "The Drifters," says Treadwell, who manages her own version of the classic rhythm and blues group, which as been performing for a number of years in Europe.
Now Treadwell, a native of Englewood whose husband managed the group until he died in 1967, wants to come home and bring her group with her. But she says Marshak is preventing her by asserting exclusive rights to the Drifters name.
And Treadwell is more than a little angry.
" He's talking about a history that he had nothing to do with," Treadwell said in an interview outside the courtroom.
As a result, Marshak and Treadwell are about to take part in a live "Battle of the Bands" in a new arena: a federal courtroom in Newark, where the two promoters are vying for rights to the group's title. U.S. District Judge Nicholas H. Politan is set to pick a jury that is expected to hear testimony from some of the performers from the glory days of rock 'n roll and view tapes of performances and rehearsals as well.
Marshak is quick to admit that his performers are not the original singers, and points out that in the 45 years since "The Drifters," began recording, the group has boasted 30 to 40 members. Jay Warner, in his encyclopedic "Billboard Book of American Singing Groups," notes that in the first two decades of the group¿s existence, it had 12 different lead singers, most notably Clyde McPhatter and Ben E. King.
" It's not "The Beatles," says Marshak, who compared the group to a baseball team or a Broadway show whose members change over the years.
The situation is not unique.
" Oldies" reunion shows frequently feature performances by groups whose members have little or nothing to do with the people who recorded the original hits.
" It's been 20 years since some of these groups had original members," said Marshak, who noted that some of the originally performers would be in their 70's or 80's if they were even alive today.
Marshak said he pioneered the oldies revival back in 1969 at the New York Academy of Music when WCBS-FM first began its oldies format. Then, he said, most of the performers were original.
" Since then," the promoter said, ¿death has taken its toll."
There are some original performers who are still alive and well: Johnny Maestro, who performed "16 Candles" with "The Crests" in the late '50's, still appears with his current group, "The Brooklyn Bridge"; Larry Chance of "The Earls" still leads his group with its big hit "Remember Then," and Earl Carroll of the Cadillacs, who spent years working as a custodian for the New York school system, is still making live appearances. And there are others.
But audiences often don't seem to care. A performance by the Mello-Kings had only the brother of the original lead singer stepping into his decease sibling's spotlight, but listeners cheered and sang along just the same.
The history of some of the groups, however, can resemble legal soap operas.
According to his attorney, Mark Ingber , Marshak holds the trademark rights to "The Drifters" name, which he traces to a 1976 agreement in which three performers, Charles Thomas, Dock Green and Elsbeary Hobbs, assigned the rights to him.
Thomas, Green and Hobbs had been appearing as "The Drifters" after the original group was disbanded in 1969, and they were recruited from another group, "The Crowns", to take over the vocal chores.
Court papers, however, report that their affiliation was somewhat short-lived. Green was allegedly fired for failing to show up at performances, while Thomas was fired after he became embroiled in a knife fight with another of the group's lead singers, Johnny Moore, during the wake for the group's late manager.
Today, Moore still performs with Treadwell's group, but Marshak is suing Thomas in federal court in New York to stop him from using the name "Charlie Thomas' Drifters" or some similar label.
Treadwell's attorney, James Flynn, compared Marshak's claim to the group name to a star sports figure trying to start a new team using the name of his old franchise, sort of like Babe Ruth trying to start a new Yankees.
Marhsak, however, maintains that the name "The Drifters" is more of a 'concept' than a name associated with any individual, and points to other well-known groups that have had major turnovers, including "The Temptations" and "The Supremes", and still continue to perform.
Marshak also handles a version of "The Platters", whose 1950's ballads featured the soaring tenor of Tony Williams. But Williams died several years ago and Marshak's current group boasts no original members. Marshak traces his rights to "The Platters" name to Buck Ram, the group's original manager, and acknowledged that the courts have given an okay to a competing group that features Herb Reed, who sang bass for the original group.
Marshak also fields a version of "The Coasters" ("Yakety Yak," "Charlie Brown") in which original member Carl Gardner occasionally shows up to join newer members.
" These guys are old, they come back when they feel like it", Marshak says.

Star Ledger 8/6/98
PROMOTER WINS RIGHT TO USE "DRIFTERS"
But jury invalidates federal trademark
By Russell Ben-Ali
Star Ledger Staff
Over the years, there have been dozens of singing groups that have laid claim to the name The Drifters, a legendary ensemble that helped define an early era of rock 'n roll with such classics as "Up on the Roof" and "Under the Boardwalk".
But a federal jury in Newark yesterday decided that only one person, promoter Larry Marshak, can legitimately use the name in the United States.
The decision ended a bitter, five- day battle in U.S. District Court for exclusive national rights to The Drifters name between Marshak and Faye Treadwell, whose husband managed the original group from its formation in 1953 until his death in 1967.
Marshak, who buys rights to the names of classic singing groups, sued to block Treadwell from using the name of the group that once featured singers Clyde McPhatter and Ben E. King before they left to establish solo careers.
But the eight-member jury decided that Marshak's federally registered trademark for the group¿s name should be canceled because the three singers who assigned it to him never legitimately owned the name. The jury also found that the singers - one-time Drifters members Charles Thomas, Dock Green and Elsbeary Hobbs, had committed fraud in their 1970 application to the U.S. Patent and Trademark Office.
At the same time, the jury found that Marshak had proven that he owns a valid "although not federally registered trademark for the Drifters by virtue of after 1976 constituted a voluntary abandonment of claims by her", a position she considers to be a Catch-22.
"We didn't voluntarily abandon anything." Treadwell said. "We were kept out of the market. If I had brought my group here he would have sued me."
"I would have" sued her, Marshak later confirmed.
James Flynn, Treadwell's attorney, also took exception to the jury's decision.
"There were records sold and continuous radio play, all of which generate royalties and served towards Treadwell's continued use of the name," Flynn said, adding that Treadwell would likely appeal the jury's decision.
The cancellation of Marshak's federal trademark also leaves open the question of royalties. Treadwell claims that she owns copyright and publishing rights for some of the songs Marshak's groups have re-recorded, but she has not been paid royalties.
Marshak's attorney, Mark Ingber, said he would consider requesting a stay of the jury's decision to cancel the federally registered trademark.
For now, Marshak said he will continue to promote two versions of "The Drifters," one that performs on the East Coast and one on the West Coast.
"These are some of the original guys from the group years ago," Marshak said, comparing the members to the changing casts of a Broadway play.

Star Ledger 4/10/99

Harmony still elusive for competing Drifters
One vocal group says its rival defied ruling
By Robert Rudolph
Star Ledger Staff
Star Ledger
And the band played on...which may be the problem.
Last year, a federal jury in Newark attempted to settle a bitter battle of the bands over who owns the legal rights to the name of legendary vocal group The Drifters, whose doo-wop hits such as "Up on the Roof" and "Under the Boardwalk" have become classics of the early rock 'n roll era.
The verdict left promoter Larry Marshak, who claimed to have purchased the rights to the group name from several former members, with the exclusive rights to promote his group on U.S. stages.
It also granted rival promoter Faye Treadwell, whose husband managed the original group from its formation in 1953 until his death in 1967, with the right to continue to promote her version of the group in Europe, where they have been performing and recording for more than two decades. Treadwell maintains that she retained the rights to the name after the death of her husband.
The split decision, however, opened the door for more legal challenges and possible appeals.
And yesterday, it appeared a new turf battle may be shaping up: Mark Ingber, an attorney for Marshak charged that Treadwell's group illegally appeared last month at a Democratic Party fund-raiser in Florida featuring President Clinton.
In fact, Clinton used the occasion to express gratitude to the "American people (who) have stood by me through thick and thin" by quoting from the lyrics of one of the Drifters' biggest hits, "Stand by Me."
But U.S. District Judge Nicholas H. Politan said he could make no final ruling on the issue until he is able to review formal legal papers on the matter.
"The only judge I know who decides cases without papers is Judge Judy," Politan said.
At the same time, Politan ordered his court to observe a moment of silenced in memory of Johnny Moore, the one-time lead singer for the group, who died shortly after Christmas at age 64.
Moore had made one of his last live appearances on the witness stand in the same Newark courtroom last year during the trial over who held the rights to the group name.
Dressed in the patent leather shoes and white sport coat that were a trademark of his stage appearances, Moore had offered impromptu snatches of some of his hits along with his testimony as he recounted his singing career.
Yesterday, Politan's order for silence brought a somber moment to the otherwise lively courtroom debate as the jurist bowed his head and offered a brief prayer for Moore : "God rest his soul".
Moore, who sang lead on such original hits as "Under the Boardwalk" and "Saturday Night at the Movies", had bolstered Treadwell's claim of a direct lineage to the original group, which her husband had formed.
Moore had joined the group in 1955, at age 21, left the group and later returned as lead singer in 1964.
However, attorney Mark Ingber- who represents Marshak- said the death of Moore may leave Treadwell's legal position in dire straits.
"They relied so heavily in Johnny Moore (being party of their group)," he said, "and now, they don't have him anymore."
Treadwell's attorney, James Flynn, however, said the death of Moore should have little legal bearing on the case.
"We believe we still have the best claim", Flynn said.
Marshak, who has purchased the rights to a number of groups, compares the acts to Broadway plays in which the cast members change, but the performances remain the same.
Last month, the issue of who owns the rights to legendary vocal groups was raised before Congress, where legislation has been proposed for "truth in singing" bills to protect the public and performers against "imposter" groups.