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Reed Elsevier Sues Punk Band Over Parody Logo That Was Discontinued Years Ago

from the daily-trademark-variety dept

Thu, Apr 22nd 2010 10:20am — Mike Masnick

brian williams alerts us to the news that the punk band The Vandals was recently sued by publishing giant Reed Elsevier because back in 2004, the band put out an album that used the font used by Hollywood trade publication Daily Variety for its own name on the album cover:

After the album was released, the band and its record label were sent a cease-and-desist over the logo. Rather than fight it (and they had a strong parody case), the band and the label complied with the C&D and stopped using the logo, replacing it with the one you see at the bottom of the image above. The Vandals seems quite confused over the nature of the lawsuit, seeing as they complied with the C&D more than five years ago:

The Daily Variety claims that our old logo for Hollywood Potato Chip, which is a parody of the Daily Variety logo commenting on the materialistic culture of Hollywood, is still on the Internet and they are suing us for this. We agreed not to use this logo anymore and we have no product for sale with this logo so their claims that we are intentionally using it and harming the Daily Variety are ludicrous.

We do not have this logo, or any other of their logos on any of our sites under our control. They are telling us that it is still on the Internet but they wont tell us where it is. Instead, they have demanded a HUGE sum of money. I mean HUGE, OUTRAGEOUS, and IMPOSSIBLE TO RAISE; and $25,000 for their attorneys to cover all the damages they have suffered from what they call a breach of our settlement agreement.

We have breached nothing. We are just a punk band and a small insolvent record label trying to keep stuff on the shelves and pay royalties to other artists.

Website The Wrap asked Reed Elsevier for comment and got the following message, which doesn't address any of the actual issues:

"The stylized VARIETY mark is a very well known and valuable trademark which the Vandals misused," Henry Horbaczewski, counsel for Reed Elsevier, wrote in an e-mail message to TheWrap. "We sued them, and they accepted a settlement agreement in which they promised to stop misusing our mark, because we wanted to stop the misuse, not their money. They then ignored their agreement."

Horbaczewski added: "[Vandals drummer Joe] Escalante is a lawyer. He should have known the consequences of his actions."

It's difficult to see how they have much of a case unless there's a lot more going on here. First of all, the use of the logo here is almost certainly protected as a parody use -- and it's difficult to believe that anyone (moron in a hurry or not) would face a likelihood of confusion and believe somehow that the album was endorsed or supported by Daily Variety. Even so, if it's true that The Vandals are not selling anything with this logo, then it's difficult to see how Reed Elsevier can claim that this is "use in commerce." This whole thing seems like a pointless lawsuit for no reason whatsoever. Perhaps Reed Elsevier's lawyers would be better served making sure that the company isn't publishing fake, ghost-written journals at the behest of industry interests, rather than suing a random punk band for a parody...

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Filed Under: daily variety, parody, the vandals
Companies: reed elsevier

66 Comments

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John Doe, 22 Apr 2010 @ 10:52am

Adding fuel to the fire...
Looks like you just added fuel to the lawsuit fire as now there is yet another place that the infringing logo can be found; at Tech Dirt. ;)

Stupid lawsuit though. Apparently they don't understand how the internet works. Just because someone else posts the material doesn't make you liable for it.
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Anonymous Coward, 22 Apr 2010 @ 10:53am

So entertainment magazines are getting in on the pre-settlement scam too?
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ChurchHatesTucker (profile), 22 Apr 2010 @ 10:55am

Yeah, well, that's new
Seriously, people are suing punk bands for repurposing stuff?

Seriously?

Because everyone knows that if you want to squeeze the golden goose, look to a punk band.

I seriously wonder how these people find their shoes in the morning. I'm guessing they have assistants.
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Anonymous Coward, 22 Apr 2010 @ 10:56am

the parody case would be tough to prove, because i see nothing funny or any grand social commentary. its just a plain rip off, nothing more. the band wisely backed down before they spent a ton of money and lost the case anyway.
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- John Doe, 22 Apr 2010 @ 10:59am
  
  Re:
  What ripoff? For using the same font? Yea, it looks similar overall, but it says VANDALS not VARIETY.
  
  I guess soon we will run out of fonts because all fonts will be used in a trademark.
  [ link to this | view in chronology ]
  - Anonymous Coward, 22 Apr 2010 @ 11:03am
    
    Re: Re:
    font, layout, shape, color, small word to the left in a colored box. the stylized swoosh. size ratios between the parts. 100% of the elements are the same, only the word is changed. blur both of them a bit until you cant read the words and most people would think variety. open and shut case really.
    [ link to this | view in chronology ]
    - Anonymous Coward, 22 Apr 2010 @ 11:14am
      
      Re: Re: Re:
      Wow, you are even dumber than a moron in a hurry!
      
      It is quite clearly parody when taken in context and that is exactly where the defence would be. You are correct on one thing: it would be an open and shut case.... for the defendant.
      [ link to this | view in chronology ]
    - ChurchHatesTucker (profile), 22 Apr 2010 @ 12:31pm
      
      Re: Re: Re:
      "the stylized swoosh"
      
      Well yeah, that was obviously the first instance of the Millennial orbital swoosh. So, y'know,good on 'em. Really innovative there.
      [ link to this | view in chronology ]
    - Blatant Coward (profile), 22 Apr 2010 @ 3:00pm
      
      Re: Re: Re:
      By the time I obscure my vision enough for your method to work, my dog looks just like the logo too, should I sue the American Kennel club, or you since neither of you made my dog look like Variety's logo?
      
      Here is an example of punk parody:
      
      Question Authority!
      Who says?
      [ link to this | view in chronology ]
    - ChurchHatesTucker (profile), 23 Apr 2010 @ 10:29am
      
      Re: Re: Re:
      "100% of the elements are the same, only the word is changed"
      
      You keep using that word. I don't think it means what you think it means.
      [ link to this | view in chronology ]
    - jacksola (profile), 12 May 2010 @ 12:03pm
      
      Re: Re: Re:
      Open and shut case of what? Font theft? How about the fact that the Vandals play music and publish their works on CD and Variety is a magazine? Anybody squinting at the CD who thinks it's actually a magazine with a different name should be hospitalized and their confusion should definitely not be the basis for a lawsuit.
      [ link to this | view in chronology ]
- dorp, 22 Apr 2010 @ 11:06am
  
  Re:
  the parody case would be tough to prove, because i see nothing funny or any grand social commentary.
  
  You know know who the The Vandals are, right? You do know that this is part of the album cover, right? You have listened/read the lyrics of the songs, right?
  
  I could go on, but the basic idea is still the same: you have no idea what you are talking about. The album cover is part of the overall message of the album.
  [ link to this | view in chronology ]
  - Anonymous Coward, 22 Apr 2010 @ 11:11am
    
    Re: Re:
    so what part of variety are they specifically parodying?
    [ link to this | view in chronology ]
    - Anonymous Coward, 22 Apr 2010 @ 11:23am
      
      Re: Re: Re:
      Their logo.
      [ link to this | view in chronology ]
    - dorp, 22 Apr 2010 @ 11:25am
      
      Re: Re: Re:
      so what part of variety are they specifically parodying?
      
      Variety being a well know news source (as they claim themselves) and thus being a good representation of the establishment that the album attacks. Again, you obviously know nothing about the group, nor the album, so concept of "context" does not even seem to occur to you.
      [ link to this | view in chronology ]
      - Anonymous Coward, 22 Apr 2010 @ 11:40am
        
        Re: Re: Re: Re:
        THAT'S BECAUSE OUR LITTLE AC LACKS PERSONALITY!
        [ link to this | view in chronology ]
      - Anonymous Coward, 22 Apr 2010 @ 12:10pm
        
        Re: Re: Re: Re:
        the context should always be clear without having to dig. i look at it and i see a rip off and nothing that tips be off to parody. they would have been better ripping off a chip company based on the title. there is little obvious parody here.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 22 Apr 2010 @ 12:12pm
        
        Re: Re: Re: Re: Re:
        IN YOUR OPINION WHICH HAS WHAT TO DO WITH ANYTHING?
        [ link to this | view in chronology ]
        
        dorp, 22 Apr 2010 @ 2:24pm
        
        Re: Re: Re: Re: Re:
        By your demented logic, the "Variety" can easily be confused with variety shows and those existed long before these morons learned to type threatening letters. And Nike Swoosh symbol to you means that they sell... swooshes, right?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 22 Apr 2010 @ 6:59pm
        
        Re: Re: Re: Re: Re: Re:
        umm, no. sorry. trademark is a trademark, the logo used by the band is a deliberate copy of that trademark. all of the things listed are part of what makes up that duplication. if they want to claim parody the parody would have to be clear which it is not. it just looks like someone stealing a logo.
        [ link to this | view in chronology ]
        
        dorp, 22 Apr 2010 @ 7:21pm
        
        Re: Re: Re: Re: Re: Re: Re:
        Sorry TAM, you still got it wrong, except that you are doing it twice as hard now!
        1. Trademark: So someone confuses a CD with a news magazine? You must be one blind puppy.
        2. Parody: Talk about judging an album by its cover! Goes back to you being a blind puppy. Stupid one too.
        
        Thanks for playing.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 22 Apr 2010 @ 5:58pm
        
        Re: Re: Re: Re: Re:
        Sorry TAM, your 15-second troll attention span is irrelevant.
        [ link to this | view in chronology ]
  - Anonymous Coward, 22 Apr 2010 @ 11:56am
    
    Re: Re:
    The word itself is the most important element, so no, not 100% of the elements are the same.
    [ link to this | view in chronology ]
    - Anonymous Coward, 22 Apr 2010 @ 12:41pm
      
      Re: Re: Re:
      just because the vandals misspelled variety shouldn't matter. at all. it's not parody.
      [ link to this | view in chronology ]
- zegota (profile), 22 Apr 2010 @ 11:07am
  
  Re:
  I tend to agree, actually. The law says that using someone's logo is okay if you're parodying them, but you can't use someone else's IP to parody something else. This album cover certainly doesn't seem to be parodying Daily Variety in any way. That doesn't speak to this specific lawsuit, however, since the band did indeed cease and desist; Variety doesn't seem to have a case. You can't go back and change the past, you can only stop infringing in the future.
  
  Of course, that's the law, not the morality. In a just society, they *would* be able to use that logo with no problems.
  [ link to this | view in chronology ]
  - Richard (profile), 22 Apr 2010 @ 11:53am
    
    Re: Re:
    Trademark law is for the protection of the consumer. Variety would only have a case if the Vandals were selling a magazine. They are not - they sell music. There is no case. They do not even need to use the parody defence.
    
    They only need to use the "Apple defence" (as used against the Beatles - we sell computers not music ....er that one's wearing thin now though).
    [ link to this | view in chronology ]
  - The Vandals (profile), 17 May 2010 @ 5:25pm
    
    Re: Re:
    The Daily Variety calls itself "The Bible of the Entertainment Industry." The Vandals were indeed attempting a parody of them.
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Davis Freeberg, 22 Apr 2010 @ 11:19am

Not Parody
If they would have originally fought the C&D agreement instead of entering into a settlement issue, they could have claimed parody, but after they signed the contract, then this case becomes about whether or not they breached the contract.
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- Anonymous Coward, 22 Apr 2010 @ 11:26am
  
  Re: Not Parody
  They are not selling anything with this logo, where is the breach?
  [ link to this | view in chronology ]
  - Anonymous Coward, 22 Apr 2010 @ 12:10pm
    
    Re: Re: Not Parody
    only albums.
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    - The Infamous Joe (profile), 22 Apr 2010 @ 12:16pm
      
      Re: Re: Re: Not Parody
      It's not on their album, it was removed before release.
      
      You should really learn to read, pal.
      [ link to this | view in chronology ]
      - Anonymous Coward, 22 Apr 2010 @ 12:24pm
        
        Re: Re: Re: Re: Not Parody
        READING COMPREHENSION IS NOT LITTLE AC'S STRONGEST SUIT. LITTLE AC'S STRONGEST SUIT IS ACTUALLY A STRING BIKINI.
        [ link to this | view in chronology ]
    - mrharrysan (profile), 22 Apr 2010 @ 12:47pm
      
      Re: Re: Re: Not Parody
      willfully ignorant, this troll is...
      [ link to this | view in chronology ]
    - dorp, 22 Apr 2010 @ 2:27pm
      
      Re: Re: Re: Not Parody
      only albums.
      
      AC strikes and misses again! It is clearly stated that they do not sell albums or anything else with that picture. If you are going to troll, at least find a better way to do it.
      [ link to this | view in chronology ]
      - Anonymous Coward, 22 Apr 2010 @ 3:29pm
        
        Re: Re: Re: Re: Not Parody
        intent. intended to sell albums. geez.
        [ link to this | view in chronology ]
        
        dorp, 22 Apr 2010 @ 3:38pm
        
        Re: Re: Re: Re: Re: Not Parody
        Did you just try implying that they "intended" to breach trademark? That's glorious.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 22 Apr 2010 @ 5:59pm
        
        Re: Re: Re: Re: Re: Not Parody
        Which is...not what this lawsuit is about. Not that you actually bother to read, of course.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 22 Apr 2010 @ 7:00pm
        
        Re: Re: Re: Re: Re: Re: Not Parody
        haha. just following your twisted logic to the end. nice of you to dead end the argument you lost. which one of the masnicks underlings are you, anyway? i am starting to think the asian mike.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 22 Apr 2010 @ 7:23pm
        
        Re: Re: Re: Re: Re: Re: Re: Not Parody
        I am getting confused by my own arguments. I wish I had the balls to use a screen name instead of hiding behind AC. Now I am gonna go cry in the bathtub together with angry dude.
        [ link to this | view in chronology ]
Jason, 22 Apr 2010 @ 11:31am

lol
I was just listening to Live Fast Diarrhea

thank you Vandals this is hilarious and a bit of a stretch my guess is if Kung-Fu Records wasn't as successful as it is they wouldn't have bothered.
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Babooshka, 22 Apr 2010 @ 12:10pm

Lawyers and Publishing Giants
I can't wait till lawyers are somehow replaced by technology of some sort. There's a profession that advances humanity in no way shape or form.

The publishing industry produces garbages, is about to be demolished by the rise of self publishing and ipad type devices, and is taking the let's sue people to protect and add to our revenue stream model.

Dinosaurs must have roared loudly before their extinction; here's to the extinction of publishing multi-nationals and their armies of crony lawyers.
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- JEDIDIAH, 22 Apr 2010 @ 1:18pm
  
  Don't blame the reaper.
  Don't blame the reaper. He's not the one in charge. He is just a daemon carrying out the bidding of his master in an automated sort of fashion.
  
  Lawyers are much the same.
  
  Whine about the schmuck behind the schmuck.
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- Jon, 5 May 2010 @ 1:54am
  
  Re: Lawyers and Publishing Giants
  You should read 'Accelerando' by Charles Stross. Economic/capitalist tools grow to sentience and eat the galaxy.
  [ link to this | view in chronology ]
Anonymous Coward, 22 Apr 2010 @ 12:17pm

it seems as though the people saying that it is not parody just don't know that much about punk rock. everything to do with "the establishment" is fair game! the vandals have been around since '80 and still make fun of people like you.
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Anonymous Coward, 22 Apr 2010 @ 12:50pm

it seems as though the people saying that it is not parody just don't know that much about punk rock. everything to do with "the establishment" is fair game! the vandals have been around since '80 and still make fun of people like you.
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Anonymous Coward, 22 Apr 2010 @ 12:57pm

Google "Hollywood Potato Chip"
The issue is probably being caused by the fact that if you google "Hollywood Potato Chip" and take a look at the results, especially image results, it appears that all of the music download services including Amazon.com are using the old album cover image.
I am interested to know if Daily Variety has any recourse if The Vandals are not putting the album out with that as the approved artwork.
This may all be done by over-zealous fans but I guess the next lawsuit will be against Green Jelly since you can still find their old Green Jello album cover online and repost it too.
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Rose M. Welch (profile), 22 Apr 2010 @ 1:07pm

I'm surprised that they changed the logo. I mean, it's clearly a parody, and they seemed like the kind of people who would stick by their guns and not change their logo.

Or their pants.
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Danny (profile), 22 Apr 2010 @ 2:02pm

Calling Rona Barrett
Well, if nothing else, it gives Variety some more gossip to cover instead of covering the real news they, apparently, can afford to cover.
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Ben, 22 Apr 2010 @ 2:30pm

Lawyers. Heh.
First, I'm not convinced that simply because The Vandals complied with a S&D order, that they surrender their argument that the usage was parody, which it was. Look up parody. Do some homework.

Second, I think Daily Variety has it backwards. Joe Escalante is a lawyer. He is a music business laywer, and he knows other lawyers. Someone has got to be a moron in a hurry to think that there's a chance in hell that this is going to net Daily Variety anything.

The Vandals are dumb. They've always reveled in that. They're not, however, stupid.
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David Sanger (profile), 22 Apr 2010 @ 2:50pm

In commercial use?
Mike, their claim that "They are telling us that it is still on the Internet but they won't tell us where it is" is not very convincing

30 seconds with Tineye shows the image on Amazon and a handful of other music sites.

17 results - TinEye http://j.mp/cJohd7
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- dorp, 22 Apr 2010 @ 3:36pm
  
  Re: In commercial use?
  And which one of those are sold by The Vandals?
  [ link to this | view in chronology ]
- Mike Masnick (profile), 22 Apr 2010 @ 3:58pm
  
  Re: In commercial use?
  30 seconds with Tineye shows the image on Amazon and a handful of other music sites.
  
  But is that the band's fault? They don't control Amazon, do they?
  [ link to this | view in chronology ]
- Rose M. Welch (profile), 22 Apr 2010 @ 5:32pm
  
  Re: In commercial use?
  I'm reasonably sure that you're supposed to show how they're infringing. Essentially they're saying 'We're suing you for something that you're doing and bad things are going to happen unless you desist, but we're not going to tell you what that something is.'.
  [ link to this | view in chronology ]
- Anonymous Coward, 22 Apr 2010 @ 6:00pm
  
  Re: In commercial use?
  Except of course that search results have nothing to do with the claim you are quoting.
  [ link to this | view in chronology ]
Anonymous Coward, 22 Apr 2010 @ 7:37pm

So will they sue Wikipedia next?
Wikipedia has the image on their website. Will Reed Elsevier attempt to sue Wikipedia also?

http://en.wikipedia.org/wiki/Hollywood_Potato_Chip
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Jesse, 23 Apr 2010 @ 8:48am

This is a Joke.
This is absurd. You can't copyright a font. It is clearly a parody. A parody by a non-mainstream punk band. Whether the parody was highly effective or not carries no weight. The intent was parody. The Vandals did not use Daily Variety's actual logo. They changed their artwork when DV called them out on it, when they could have actually fought it. What more can The Vandals do? Spend the rest of their lives scouring the internet for the original art that some kid posts on his blog? Obviously the publishing industry is hurting for these clowns to be speculatively hunting down money which isn't rightfully theirs for "damages." I'm sure the Vandals almost use of the DV in 2004 has cost the Daily Variety a HUGE sum of money.
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Anonymous Coward, 23 Apr 2010 @ 9:08am

"This is absurd. You can't copyright a font"

...in the U.S.

However due to the Berne Convention we will enforce the copyright given to a font in another country. I would imagine US companies generating fonts for revenue are probably outsourcing that slice of the action.
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The Vandals (profile), 4 May 2010 @ 3:01pm

The Daily Variety
Here's a couple clarifications. I loved this article by the way.
The album art concept is a parody of the materialism of Hollywood business machine. The Daily Variety was parodied because they call themselves the "Bible of Show Business." they are the heralds of what is being mocked by our band.

Regarding the contract issue, the blogger was right who said that if we signed a settlement agreement, they are just suing on the contract. However, we did not breach the agreement, we do not control myspace music, amazon, and youtube. This is where the Variety made their mistake. Since they are abusing the permanent injunction, which carved out 3rd party postings and provided a 30 day cure period, both of which were ignored by Variety's lawyers when they filed their law suit, we are taking the occasion to try to lift the permanent injunction.
It was signed under the duress of a bullying law firm with 950 attorneys at their disposal.
If this is what they are going to do to us for the rest of our lives we have to stand up and fight back this time.
They asked us for $75,000 and want us to sign something to say that if this happens again we owe them twice as much. If what happens? Someone uses the internet? It's ludicrous.d
Thanks for your support.
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- brian williams, 5 May 2010 @ 3:37pm
  
  Re: The Daily Variety
  I shared The Vandals' story with techdirt and some other ip law and tech contacts aft learning of Elsevier's ugly lawsuit [ my kids are friends w josh's kids and your band is the shit :) ... Plus me a lawyer 2 and I've a strong fair use interest ].
  
  I originally contacted some folks up at Stanford Center for Internet and Society Fair Use division. They suggested they could possibly be interested in your f-'d up situation except for the fact that the matter seemed to them to be fully stuck in post settlement contract bullshit arena rather than a righteous fair use defense (which The Vandals have obviously always held against Elsevier).
  
  Perhaps you should give the Stanford Center for Internet and Society's Fair Use Project a call yourself -- Here' s the Fair Use contact info ... Stanford Fair Use division. Anthony Falzone @ anthony.falzone@stanford.edu.
  
  Get the case removed to Cali Federal District court soon and fight them
  
  Cheers
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Donnie, 5 May 2010 @ 12:47pm

joe isn't the drummer....at least he hasnt been since the 80's
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briancrime (profile), 5 May 2010 @ 3:44pm

thanks mike for writing the story up
Thanks to techdirt for doing such a fantastic job on this! I'm embarrassed i didn't see this post until Josh re tweeted today. Thanks Mike!
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Chadams (profile), 5 May 2010 @ 9:47pm

Just curious...
I was going to comment on Joe being labeled the drummer as well (I know off topic and irrelevant), but my main question would be how many of The Vandals' fans would have even known that was the DV's logo? I am not trying to suggest their fans have any sort of intellectual deficiency, so much as not caring about this publication or its material.
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Sadie, 7 May 2010 @ 8:02pm

Not sure if anyone already commented on this....
Did anyone else notices that they put Joe Escalante as the drummer.... he's the bassist....

Just sayin'
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Travis, 7 May 2010 @ 11:26pm

how I spend a friday night right!
In the past year, Curious why the Vandals didn't receive more press for their song- the day that ferrah fawcett died.Especially since she did.

PLus,

I always thought this logo looked like they were going for arabian nights ali babba vibe. who the hell reads variety besides people who get haircuts or oil changes.
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SPC4 Wage Slave, 20 May 2010 @ 7:24am

Re: Chadams
Being neither from California, nor associated with any form of entertainment buisiness myself I was not familiar with DV at all. I come from what most people considder a "fly-over" state and couldn't care less about the biz. I do however enjoy the vandals music and do consider myself a fan of theirs. The idea that the logo of a magazine like DV being used in album art is not a selling point to me. I bet you the majority of Vandals fans feel the same way. If the argument was that Vandals satirical album art helped sell more albums, I would dispute that in a heartbeat.
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- SPC4 Wage Slave, 20 May 2010 @ 7:30am
  
  Re: Re: Chadams
  PS Joe if you ever tour again, I made a few vandals fans out of locals here in Gereshk and Lashkar gah, Afghanistan. Just thought you should know.
  [ link to this | view in chronology ]