BYRDWATCHER: A Field Guide to the Byrds of Los Angeles
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BYRDS v. BYRDS:
THE BATTLE FOR THE BYRDS NAME
1989 - 1990

Roger McGuinn Discography

David Crosby Discography

Chris Hillman Discography

Michael Clarke Discography

Skip Battin Discography

John York Discography


Roger McGuinn Bibliography

David Crosby Bibliography

Chris Hillman Bibliography

Michael Clarke Bibliography

Skip Battin Bibliography

John York Bibliography


Criticized by Clark partisans:
Clark fans emphasized his undeniably crucial role as singer and songwriter in the original Byrds, and the quality of many of his post-Byrds releases. As he had stopped touring under the Byrds name and expressed remorse for it, he should have been included in the recent reunion ventures, Clark fans argued.
Of course, negotiations had been going on among the various camps at the time and over much of 1990, and no one aside from the participants knows what positions were taken there. According to one report, Clark's representatives had tried to extract a time commitment for a reunion tour to which the others could not agree.
To be fair, there were a number of good reasons for McGuinn, Crosby and Hillman to be wary of including Gene Clark. First, he had proven to be an unreliable partner in three past ventures with McGuinn and Hillman, in 1966, 1967 and 1980. His health difficulties in 1988 gave them additional reason to doubt Clark's reliability.
Second, Judge Castagna's ruling made clear that Clark's actions had put McGuinn, Crosby and Hillman in a difficult legal position. Recognizing Clark's importance to the original group and unwilling to sue their old associate, the others didn't take legal action to prevent his use of the Byrds name. Then, when they tried to stop Clarke from using the name, the judge ruled in effect that they had waived their right to do so by forebearing to sue Clark and Clarke back in 1984. It would be reasonable to be chagrined at the eventual consequences of Clark's actions.
Third, allowing Clark to take part in a reunion could arguably have hurt their own legal claim to the Byrds name. If his participation had the effect of ratifying Clark's Tribute misadventures, it could actually have bolstered Mike Clarke's claim. Clark could have been included in a way that helped the claim of the three Byrds, but only if Clark were willing to take a stand against his friend Michael Clarke. It seems unlikely that Clark would have participated under those circumstances.

Lose their lawsuit:
With the benefit of hindsight, the judge's ruling suggests that McGuinn, Crosby and Hillman would have been better off from a legal standpoint if they had done any of the following things earlier: 1. formalized their 1973 gentlemen's agreement that only the set of five originals together could use the name "Byrds"; 2. registered the trademark at that time; 3. avoided their many statements, particularly McGuinn's, to the effect that they had no interest in using the name; 4. persuaded Clark not to use the Byrds name, or sued him as soon as his band started using the name "Byrds," or 5. used the Byrds name for the Ash Grove Benefit in 1988. Of course, taking these steps would probably have caused countervailing non-legal problems.
From the judge's language referring to 300 performances by Clarke over four years, it sounds as if Clarke's attorney successfully blurred the distinction between Gene Clark's Tribute Byrds and the Byrds featuring Mike Clarke, leaving the judge with the incorrect impression that Mike Clarke had been using that name more or less continuously for four years. In fact, Mike Clarke had not been part of any group using the name since November of 1985. As soon as Clarke started using the name without another original in early '89, the three Byrds brought their action. Their failure to find more than one case of misleading advertising should have been irrelevant, since Clarke's Byrds had only been touring for a few weeks, not for four years as the Judge stated.
The judge's reliance on the four-year span suggests the approach they probably ought to have taken if they had proceeded to trial. They had to distinguish Clark's group from Clarke's, in order to justify not suing in 1984 but doing so in 1989. The intervening Byrds reunion in January 1989 also provides a rationale for suing in '89 but not earlier. No one can say if they would have won, though; Crosby and friends were clearly correct that it would have been an expensive proposition to find out.


To read about the band that started all the fuss -- the 20th Anniversary Tribute to the Byrds -- see Byrds v. Byrds: 1984 - 1988. To read about other aspects of the concurrent solo career of Roger McGuinn, see Roger McGuinn: 1981 - 1991. For Gene Clark, see Gene Clark: 1980 - 1991. Profiles of the other assorted Byrds on this Page are forthcoming.


The Byrds v. 8.0: McGuinn, Crosby and Hillman

In December of 1988, Roger McGuinn, David Crosby and Chris Hillman announced that they would play three more shows together. At their June '88 reunion, they had played under their own names, but this time the trio would be billed as the Byrds. The purpose for the shows, they told reporters at the time, was to bolster their legal claim to the Byrds trademark, for which they were formally applying -- a move prompted by the actions of Michael Clarke, who had already applied for the Byrds trademark and was even then mounting a tour by a group he called "The Byrds featuring Michael Clarke." Alarmed that they might lose whatever legal rights they had in the name, the three arranged a series of three Southern Californian shows in three nights, playing the Coach House in San Juan Capistrano on January 5, the Bacchanal in San Diego on the 6th, and the Ventura Theatre in Ventura on the 7th. They did not invite Clark to participate in their reunion, because of old disagreements and misgivings, and because of his own involvement in the earlier Tribute to the Byrds, for which they were criticized by Clark partisans.
The shows were similar to the Wiltern reunion, beginning with three solo sets, but the 1989 shows boasted almost an hour of group performance instead of fifteen minutes. The trio were backed by John Jorgenson and Steve Duncan of the Desert Rose Band. Reviews were glowing.


The Byrds featuring Michael Clarke

Clarke had left Gene Clark's Tribute Byrds in '85. Since that time he had been working day jobs and concentrating on his painting. In late '88 he fell in with Steve Green, of Artists International Management in Boca Raton. Green was an artist manager who specialized in promoting acts on the oldies circuit, many of whom had only a tenuous connection to the name under which they performed. However weak the aesthetic and moral claims of these acts to their respective names, Green had successfully defended the legal claims of several of them, including a set of Platters and a set of Drifters.
Clarke's set of Byrds included Skip Battin and Carlos Bernal, as well as a pair who had no connection whatsoever to the actual Byrds, guitarists Terry Rogers and Jerry Sorn. True to his word, Gene Clark did not participate in Clarke's revival. He did remain on good terms with Clarke, however, which put him in between the two disputing sides when McGuinn, Crosby and Hillman made it clear they would oppose Clarke. Interestingly, casual fans might have drawn a different conclusion about Gene Clark's participation if they saw the new band's ads, in which Mike Clarke's name was often spelled "Clark."
Clarke's pathetic aggregation of so-called Byrds was on the road by February of '89. The response was quick. On April 14, 1989, McGuinn, Crosby and Hillman filed suit against Clarke in a Tampa federal District Court for unfair competition, deceptive trade practices, and false advertising, and sought a preliminary injunction against Clarke's use of the name.
Crosby and his manager Bill Siddons led the legal fight against Clarke on behalf of the three Byrds. Crosby summarized their thinking with typical candor: "First Gene went around with a very, very bad band, calling it the Byrds. Well, okay. Gene was one of the original writer/singer guys -- and I thought that, though the band was awful, he had as much right to claim the essential part of the Byrds as anybody else. But when it gets to be Michael Clarke the drummer -- who never wrote anything or sang anything -- going out there with an even worse band, and claiming to be the Byrds, at times even advertising themselves as the 'original' Byrds, and they can't play the stuff.... What they were was a bunch of drunks out there trying to make enough money to get to the next bus stop. It was dragging the name in the dirt."*


A Time to Refrain from Embracing: Byrds v. Byrds

As the hearing on the preliminary injunction approached, the threesome appeared confident that the judge would be swayed by the reasoning expressed in the Crosby quote. But the decision would be made by Judge William Castagna, a 69-year-old District Court judge, for whom legal considerations would necessarily be paramount. The arguments cited by Crosby were essentially ethical and aesthetic in nature. It was less clear than Crosby et al. realized that these could be transformed into successful legal claims.
From a legal standpoint, Clarke's case was better than a lay observer might have expected. Green made several astute arguments that might have been persuasive, especially if Judge Castagna had no personal familiarity with the Byrds or with rock music generally: that although Clarke never wrote or sang in the Byrds, he was a sex symbol and his looks may have sold as many records as the others' musical contributions; that the Byrds' sales declined sharply after Clarke's departure; that McGuinn had exploited the Byrds name himself after the departure of Hillman, the last other original member; that although Clarke, like the other originals, had signed away his right to the name when leaving the group, all five original members had reunited under the Byrds name in 1973; and finally, that McGuinn had expressed his intent not to use the Byrds name many times, constituting a legal abandonment of his rights to it by the time Clarke began to use it in 1984.
When Judge Castagna ruled on the preliminary injunction in late May, he didn't have to get into any of these issues. Instead, he based his decision on much simpler grounds. He denied the injunction sought by McGuinn, Crosby and Hillman because they had failed, he found, to show that they would be irreparably damaged by Clarke's actions. The judge listed two reasons for this conclusion. First, although Clarke had logged over 300 performances since late 1984 under the Byrds name, either with Clark's group or his own, the other Byrds could cite only one example of misleading advertising (in which Clarke's act was described as "the original Byrds featuring Roger McGuinn") that might result in public confusion. Second, McGuinn, Crosby and Hillman had known about Clarke's activities for at least four years before they sought the injunction. Under those circumstances, they could not show they would be irreparably damaged by Clarke's use of the name.
As a legal matter, the judge's ruling did not necessarily mean that Crosby and company would lose their lawsuit. But as a practical matter, the three Byrds reluctantly concluded that it would be prohibitively expensive to continue the litigation and dropped the entire suit. Clarke was left with at least the ability to continue using the Byrds name, and the prospect that he might successfully prevent the others from using it as well. In an attempt to leverage his de facto control of the name, Clarke's camp made overtures to the others about a reunion of all five original Byrds, but these conversations came to naught.
Meanwhile, John York had replaced Carlos Bernal in Clarke's bogus Byrds. York was gone by October of '89, and Clarke's group was reduced to a quartet. Clarke, Battin, Rogers and Sorn toured throughout 1990.
To show they did not concede the name to Clarke, McGuinn, Hillman and Crosby performed together as the Byrds at the tribute to Roy Orbison in February, 1990. They were joined onstage by Bob Dylan, for the first time since the 1965 gig shown on the jacket of Mr. Tambourine Man. In August of '90, the three Byrds recorded four new tracks together in Nashville. These tracks, and two from the Roy Orbison tribute, appear on The Byrds Boxed Set. Nothing had been resolved among the three camps after months of discussion.

To read about the Byrds reunion at the 1991 Rock and Roll Hall of Fame Induction, the end of one set of bogus Byrds and the birth of yet another, see Byrds v. Byrds: 1991 - 1997. To read about other aspects of the concurrent solo career of Roger McGuinn, see Roger McGuinn: 1981 - 1991. For Gene Clark, see Gene Clark: 1980 - 1991. Profiles of the other assorted Byrds on this Page are forthcoming.



Notes

"It was dragging the name in the dirt." DiMartino, Spin at 85.


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Spinoffs | Byrds v. Byrds | 1989 - 1997

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