Sunday, August 27, 2017

The Last Resort: Eagles Sue the Hotel California for Trademark Infringement

Hotel in Mexico Alleged to be Profiting from Rock Classic

Well, I heard some people talkin' just the other day about the recent Classic East concert by 1970s music acts at Citi Field headlined by the Eagles (Steely Dan and Fleetwood Mac were among the others), one of the most successful bands ever based on album sales and tour receipts. They have sold over 100 million units, and a Billboard article suggests that "it is safe to assume that the Eagles have grossed over $1 billion and been seen by 10 million fans worldwide." 

You could say life's been good to the band members, but they have worked to establish the Eagles as a major success in the music industry over the past several decades. They view their success as hard earned, so it is no surprise that the band filed a trademark infringement lawsuit against the owners of a Mexican hotel named Hotel California, which just happens to be the title of the band's classic hit album and song. Both have been a huge part of the band's success; the song won the Grammy for Record of the Year (the album lost out to Fleetwood Mac's Rumours), and the album is number 18 on the list of all-time best selling albums as certified by the Recording Industry Association of America. 

The lawsuit was filed in May and is currently pending in federal court in the city of Los Angeles. So what is it really all about? The heart of the matter is whether the hotel is infringing the trademark rights that the Eagles claim to have in the words "Hotel California" as they relate to the sale of merchandise using those words. What it all comes down to is the question of whether they have the sole, legally enforceable right to commercially exploit the value that the iconic, signature song Hotel California brings to merchandise that the band claims it has been selling for a long time.

Trademark law protects, among other things, words and phrases that identify and distinguish the owner of the trademark. The songs on Hotel California are not covered by trademark law but rather by copyright law, which protects original works of musical composition, in addition to original artistic or literary work (like the cover art, liner notes, etc.) as well as the actual recordings. Since they never registered the trademark, the Eagles only have what are known as common law rights. But those rights, say the Eagles, mean that they are the only ones who lawfully may profit from merchandise bearing the words Hotel California because the song, as they state in their complaint, "in many ways embodies the very essence of the band itself.” The merchandise includes shirts, posters, and refrigerator magnets, among other items. (You know the shirts we are talking about: as thin as possible, easily wrinkled -- enough to give you the all night laundry mat blues.) 

The lawsuit, however, is not about the name alone, as there are a number of hotels with the same name, including one in Berlin, Germany; The Hotel California in Santa Monica (which claims a trademark); and a new Hotel Californian (close enough) about to open in Santa Barbara. (There used to be a Hotel California in San Francisco, but it changed its name.) Rather, it is about the claim that the hotel owners are attempting to capitalize on the goodwill and brand recognition that the band has created over the last few decades -- in effect, passing the hotel off as connected to the Eagles (who claim they are the ones busy being fabulous), including inspiring the song lyrics -- and making money off of the band. 

Far from being on the border, and out beyond the neon lights and Southern California's life in the fast lane, the Hotel California is not quite on a dark desert highway at the end of the Baja Peninsula, near Cabo, in a place called Todos Santos. It is quite a drive from Los Angeles, but at night there are stars in the southern sky southward as you go. By the way, it is a very small hotel with only 11 rooms and suites, so I would not say there is plenty of room at the Hotel California. I imagine the owners of this small hotel are probably a little concerned, because now the heat is on; being sued by a huge act like the Eagles is not something that gives one a peaceful easy feeling.

I can't tell you why the Eagles chose to sue now, because this issue has been out there a while. One of the issues that will be addressed in the litigation is how long this has been going on. The hotel will argue that the Eagles have been waiting in the weeds and should have sued a long time ago, and by waiting have waived their rights. But I think it just got to the point where the Eagles could no longer ignore the alleged effort to pass the hotel off as the Hotel California of the song. On that note, by the way, there is no actual Hotel California that inspired the song. Rather, it was inspired by their experience in California and all that came with their success and excess in the 1970s. The picture on the album cover is of the Beverly Hills Hotel (pictured and discussed below) and the inside photograph is of another hotel. Don Henley had this to say in a 2002 interview with 60 Minutes: “It’s basically a song about the dark underbelly of the American dream and about excess in America, which is something we knew a lot about.” He later told Rolling Stone that "'Hotel California' was our interpretation of the high life in L.A.” 

Is there any merit to the lawsuit? Attached to the complaint are a series of reviews from hotel guests attesting to the supposed link between the Eagles and the hotel, and the hotel's website (www.hotelcaliforniabaja.com) -- which uses the word legendary -- actually addresses the alleged connection between the song and the hotel. While containing a carefully crafted disclaimer and denial, the owners still clearly are seeking to capitalize on the alleged connections. Here is an excerpt from the website's "History" section. For the bullet points, I have italicized the words from the website and added the related lines from the song in brackets:
During the 1960s and 1970s, the precise details of the hotel’s history are a bit “hazy” – not uncommon for the culture of that particular era in general… There are numerous stories. Whether fact or myth, nobody knows for sure. However, one rumor, fabricated in the 1990’s by someone with no connection to any owners of the hotel, states that the Eagles once owned it. This is unequivocally false. Many of the other legends are less black and white and continue to fascinate the public. Although the present owners of the hotel do not have any affiliation with the Eagles, nor do they promote any association, many visitors are mesmerized by the "coincidences" between the lyrics of the hit song and the physicality of the hotel and its surroundings. 
  • Hotel California is accessed by driving down a long desert highway from either Los Cabos to the south or La Paz to the east.["On a dark desert highway"]
  • The Mission Church of Pilar is located directly adjacent to the hotel and mission bells are heard daily. Since the Church is so close it sounds like they are almost inside the hotel at times.["I heard the mission bell"]
  • Countless stories and firsthand witnesses relating to spirits and ghosts in the courtyard of the hotel.["How they dance in the courtyard"; "And still those voices are calling from far away"]
  • During the 'Hippie Era" of the 1960s and 1970s, people were know[sic] to easily grow their own marijuana in the extremely fertile land of the Todos Santos area and then roll them into "Colitas" which is a Mexican slang term for 'Joint" or Marijuana cigarette.["Warm smell of colitas, rising up through the air"]
  • The simple fact that the Hotel California in Todos Santos was built in 1947 which was of course far before the "Hippie" or "Classic Rock" eras
But seriously, folks, we can beat around the bushes, but if their lawyers have told them to offer up your best defense, then maybe this text on their website is not very helpful. In their answer to the complaint the owners deny any wrongdoing, including the allegation that the hotel regularly plays the song Hotel California and other Eagles songs. 

There are, of course, two sides to every story and, in time, written discovery and depositions will reveal if the hotel has any dirty laundry and if its denials are warranted. (You never know what might be found there.) Same for the allegations for which the owners claim to lack sufficient information and belief to respond; if that turns out to be incorrect it could be a problem, but I guess every form of refuge has its price. Along the way, the owners will have to assess if they should be seeking a place to stand or a place to hide; clearly the Eagles will have the lawyers dwell on small details and keep a watch for lyin' eyes when witnesses testify.

Who knows how long this will last? Well, it might take years, but perhaps less: last week the court ordered that the case will go to trial before a jury next May, and the court also ordered the parties to mediation. I am sure the owners would love to tell the Eagles to take it easy and end this lawsuit and what they see as its game of gimme what you got, but that opportunity was already gone by the time suit was filed. In fact, my guess is that the owners would settle in a New York minute, and one of these nights they might call their lawyers and ask them to do just that. I certainly do not see the Eagles doing a walk away on this suit; things are too far gone for that. The decision to sue was not made with the attitude of a desperado, but rather of a business person who sees someone making money off of his efforts. The band members see the owners as guilty of the crime, with the hotel squarely on the cheatin' side of town. They probably are thinking as follows: we may lose and we may win, but we cannot just get over it. Quite to the contrary, they followed the maxim to just find a place to make your stand. 

At the same time, lawsuits are time-consuming, distracting, and costly; whether the Eagles and the hotel will take it to the limit and keep fighting to the bitter end is a question that will be answered as the suit plays out. Right now, at this early stage, my guess is that Don Henley is thinking that this case will settle when hell freezes over. But what you get is not quite what you choose, so depending on how the case goes after the initial phase, that attitude could change -- especially after the thrill is gone. Hopefully for their sake the Eagles prevail, or this will all have been wasted time.

However it ends in the long run, this will be a hard fought case and no one should expect the parties to go have a meal together at the Sunset Grill when it is over -- or to see their lawyers in love at the end.

And now for the encores:

1. Unless you have never even heard of the Eagles you figured out that this post is filled with their album and song titles and lyrics, including both their work as a group and their solo work. There is even one reference to a song by a well-known performer with an early connection to the Eagles as well. (Hint: he co-authored an early Eagles hit and was with them at the Grammy Awards in 2016.) But let me tell you I got some news for you and you'll soon find out it's true: there are about 50 such references, so good luck. I will post the references soon so those interested can see how they fared. UPDATED 9/10/17: CLICK HERE TO SEE HOW YOU DID. If you get them all well, welcome to the club.

2. As noted above, the photograph on the cover is of the Beverly Hills Hotel. It was used without permission, and the hotel at first threatened to sue. Then they were reminded how their bookings had shot up. Here is a picture of the hotel from its website:



3. The working title for the song Hotel California was "Mexican Reggae." So much for this post had that stuck.

4. Linda Ronstadt hatched the Eagles. Really. Take a look at this link: Hudson Union, as well as this video:





5. Remember the Led Zeppelin/Spirit copyright case, which I wrote about last year? ("The Song Remains the Same: Jury Finds for Led Zeppelin in Stairway to Heaven Case") Here is an interview by Songfacts with Ian Anderson of Jethro Tull talking about Hotel California and whether it is based on a Tull song, "We Used to Know," followed by a performance of the Tull song:








6. According to the Recording Industry Association of America, the Eagles are one of only three groups with two albums in the top 20 on the list of all-time best selling albums -- the other two being the Beatles and Led Zeppelin. They are number 5 on the list of units sold; the top four in order are the Beatles, Garth Brooks, Elvis Presley, and Led Zeppelin. Not bad company at all.

7. That Record of the Year Grammy for Hotel California? The band members refused to attend (apparently they only would do so if they knew they would win) and therefore were not present to accept it. They were given the award at the 2016 ceremony, at which they performed a tribute to co-founder Glenn Frey, who had died a few weeks before.

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