Anyone who has been to a major concert event in the past few years knows that the price of admission—often topping $250—is only the beginning of the dedicated fan's financial adventure. Navigating crowded concourses during intermission or after the lights have dimmed, concertgoers are funneled towards booths and kiosks sporting a shopping mall's worth of merchandise ranging from basic logo T-shirts selling for upwards of $30 to elaborate sweatshirts or jackets with prices rivaling the face value of the ticket. And they express their affinity for their favorite performers and bands not only with their cheers, but with their Visa® cards. This I know from painful experience, having recently dropped over $200 on products the music industry calls "merch," including one particularly pricey "vintage T," to assuage family members left behind by the scarcity of tickets.
Even before sales of CDs started plunging faster than today's Dow Jones average, the sale of concert merchandise accounted for an ever increasing piece of the music industry pie. It would be fair and logical to assume that the era of mass music merchandising is of relatively recent vintage, the brainchild of buttoned-down bean counters wielding MBAs and Excel® spreadsheets looking for ways to make up for the shortfall caused by a culture of rampant illegal music downloading.
It therefore came as a surprise, if not a shock, to discover that the agents for transforming the concert business into a retailing juggernaut were not captains of the universe in corporate boardrooms during the go-go '80s and '90s, but rather the quintessential counterculture figures from the "Summer of Love" in 1967—the Grateful Dead and their iconoclastic trademark lawyer, Harold "Hal" Kant. Kant, who died two weeks ago at age 77, is credited with crafting what a recent obituary described as The Dead's "revolutionary approach to the music industry." Dennis McLellan, Hal Kant, 1931-2008; Lawyer and Fan of Opera Represented Grateful Dead, L.A. TIMES, Oct. 26, 2008, pt. B (California), at 10. The Grateful Dead, whose leader, Jerry Garcia, died in 1995, but whose legacy as uber-hippies lives on, were known as a "free-loving" outfit. Id. But Kant, a Bronx native once described in the National Law Journal as a "conservative, Republican, poker-playing opera fan" reportedly "oversaw every aspect of their business, whether licensing, touring, trademarks, merchandise, or Garcia getting busted for drugs." Id. A graduate of Harvard Law School, Mr. Kant was a clerk for a U.S. appeals court judge before he started a general business law practice and eventually began representing movie industry clients. Id. Then, in 1971, his practice found new life with The Dead. Id.
The Grateful Dead's studio recordings seldom found a place on the music charts or mainstream radio. But thanks to Hal Kant's can-do attitude towards trademarks and other IP rights, the band became a commercial success and remains one to this day. More significantly, the strategy Hal Kant helped craft for the Grateful Dead became the template for a new generation of "Jam Bands," such as the phenomenally lucrative Phish, who freely permit fans to record and trade concert tapes and CDs, and whose financial success relies on owning and controlling their intellectual property rights, including music publishing and trademarks. A visit to the Grateful Dead's or Phish's website reveals almost as much clothing and other merchandise—all bearing the bands' array of trademarks and logos—as found at the online stores of many major apparel retailers. And while bands like Phish and The Dead hew to the hippie counterculture ethos, they also have built elaborate business infrastructures with aggressive licensing arms to spread their influence throughout the retail counterculture. Kant's influence extends to the courtroom, with the Grateful Dead and many other bands successfully enforcing their trademark rights against counterfeiters, often using sophisticated strategies pioneered by Kant. Numerous examples include Grateful Dead Products v. Come 'N' Get It, 1993 WL 512829 (S.D.N.Y. Dec. 9, 1993), a case where the "Deadheads" prevailed against the seller of illegal live performance recordings, and a recent lawsuit that The Dead, along with Carlos Santana, and members of Led Zeppelin and The Doors, brought against the owner of a popular website, www.wolfgangsvault.com, for the unauthorized sale of vintage and reproduced promotional merchandise. In an ironic twist, the Wolfgang of wolfgangsvault.com is none other than the late fabled concert promoter, Bill Graham, whose Fillmore West and Winterland venues were home to countless Grateful Dead shows.
Kant's influence extended beyond pure merchandising to exploiting the right of publicity. When Ben and Jerry's ice cream produced a new flavor, "Cherry Garcia," in 1987, the company did not clear the idea with Garcia. Id. Although Garcia was unconcerned—"At least they're not naming a motor oil after me, man," he said—Mr. Kant convinced him that the issue should be addressed. Id. Mr. Kant remained the band's general counsel until around 2000, but he continued to represent Ice-Nine, the band's music publishing company, until his death. Id.
Looking back over Hal Kant's impressive IP legacy with the Grateful Dead and appreciating the imprint and impact this one unconventional trademark lawyer had on the shape of the music business brings new poignancy to one of The Dead's signature lyrics from "Truckin'," the first of its handful of radio hits—"What a long, strange trip it's been."