By: Herald Staff
A federal court judge has rejected Boston founder Tom Scholz's efforts to block former singer Fran Cosmo and his guitarist son, Anthony, from referring to themselves as "former members" of Boston.
Fran Cosmo was the lead singer on Boston's 1994 "Walk On" album and toured with the band through 2004. His son was a guitarist and songwriter for the band from 1999 until 2004.
Scholz had sued the Cosmos in federal court in Washington state, alleging that they had violated his trademarks in the band name Boston by referencing their past affiliation with the band. As part of that lawsuit, Scholz asked the court for an injunction seeking to dictate how the Cosmos could refer to their former affiliation with Boston.
In a nine-page decision issued yesterday rejecting Scholz's request, federal judge James Robart found that Scholz had "failed to establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor or that an injunction is in the public interest."
Over the years, Scholz has been involved in numerous lawsuits against former members of the band Boston as well as managers and other persons affiliated with the band. In 2006, he filed his first suit against Anthony Cosmo.
Most recently, Scholz sued Barry Goudreau, one of the original five members of the band, in Massachusetts federal court in connection with Goudreau's referencing of his former affiliation with Boston. This is at least the third such lawsuit that he has filed against Goudreau.
In a ruling several months ago, Superior Court Judge Frances McIntyre awarded the Boston Herald $132,000 in court costs in defending itself from a libel claim brought by Scholz, stating that the "threat of expensive litigation could put litigious persons of public interest beyond media commentators because of the feared expense."
By: Herald Staff
A Massachusetts Superior Court judge has ordered Tom Scholz, founder of the band Boston, to pay the Herald more than $132,000 in court costs incurred by the newspaper in successfully defending itself against a defamation lawsuit filed by the rocker against the Herald and two of its reporters.
Judge Frances McIntyre ruled that the costs were reasonably incurred by the Herald's lawyers in taking depositions of witnesses necessary for the Herald's defense, and that under court rules, where the Herald had succeeded in winning dismissal of Scholz's lawsuit, Scholz was required to reimburse it for those costs.
In addition, McIntyre found that Scholz's lawsuit "raises the concern that the costs associated with extended defamation litigation may impact First Amendment rights by chilling the free expression of ideas and opinions by media defendants." She added: "The threat of expensive litigation could put litigious persons of public interest beyond media commentators because of the feared expense."
The court concluded "This court favors allowing costs in the instant case in order that the expenses of litigation that occurred here not induce an unnecessary and undesirable self-censorship."
In late March, Judge McIntyre granted summary judgment to the Herald and its reporters in the defamation lawsuit, brought against them by Scholz in the aftermath of the suicide of Boston's lead singer, Brad Delp. According to public records, including materials filed in the case, Scholz has filed numerous lawsuits, including lawsuits against his former managers, Boston's accountant and various musicians associated with the band.
The Herald's lawyers had submitted evidence that the Herald had incurred $132,163.89 in out-of- pocket costs associated with taking and defending depositions and other aspects of the Herald's defense, and had asked that the entire amount be repaid by Scholz. Scholz's lawyers, from the firm of Todd and Weld, had argued that their client should not be required to pay any of these costs. Judge McIntyre ruled that Scholz was liable for the entire amount.
"Judge McIntyre's decision is a reminder of the chilling effect that meritless defamation lawsuits can have on journalists, and of the harmful impact such suits can have on the public at large," said Herald publisher Patrick Purcell. "We believe that this ruling is a very important one."
By Denise Lavoie
AP Legal Affairs Writer
BOSTON - A defamation lawsuit filed by the founder of the rock group Boston against the ex-wife of the band's late lead singer was reinstated Tuesday by the Massachusetts Appeals Court.
The lawsuit was filed by Tom Scholz, who founded the band in the 1970s with lead singer Brad Delp.
Delp committed suicide in 2007, and Scholz claimed that remarks Delp's ex-wife Micki Delp made to the Boston Herald could be construed as blaming Scholz for his death.
A Superior Court judge found that the article was susceptible to a defamatory connotation, but he attributed that to the writers rather than Micki Delp's remarks. In its ruling, the Appeals Court disagreed, finding that Scholz has presented "sufficient evidence to demonstrate a genuine issue of material fact whether Micki is responsible for the defamatory connotation" of the article.
By Mark Shanahan & Meredith Goldstein
Tom Scholz, the leader and principal songwriter of the band Boston, is suing his former bandmate Barry Goudreau, accusing the guitarist of trademark infringement.
In the lawsuit filed this week in US District Court in Boston, Scholz claims Goudreau's "persistent, unauthorized, and willful misuse" of Boston-related trademarks exaggerates his role in the band and "deprives Scholz of his ability to control fully the nature and quality of all (Boston) products and services ... and harms the valuable reputation and goodwill" of the band.
Attempts to reach Goudreau Thursday were unsuccessful.
In the suit, Scholz's attorney, Erik Paul Belt, goes to great lengths to minimize Goudreau's contribution to Boston's first two albums, the only two he played on. (Boston's self-titled debut, released in 1976, sold more than 17 million copies; the second LP, "Don't Look Back," released two years later, sold 7 million copies.)
According to the lawsuit, Goudreau was a member of Boston for just three years of the band's 37-year history, and played guitar on only two of the eight songs on the first album, and four of the eight songs on the second. After leaving Boston, the suit claims, Goudreau signed an agreement giving him 20 percent of royalties from all of the songs on the first two albums but giving him "no interest, right nor title to the name ‘Boston.' " Under the agreement, Goudreau was allowed to use the phrase "formerly of Boston" to advertise future performances.
By Dick Trust
The moment he heard Brad Delp's melodic ballad "Tuesday," Charlie Farren knew he wanted to record it.
Delp was the rock band Boston's lead vocalist who committed suicide on March 9, 2007. At 55, he left his fiancee, two adult children, and, among other works either not completed or not released, the unfinished song "Tuesday."
"Brad played 'Tuesday' for me one night about 10 years ago," Farren said from his home in North Chelmsford. "We were at radio station Rock 101 in Manchester (N.H.), judging a songwriting contest that DJ Lisa Garvey had among her listeners.
"When the contest was over, Brad said, 'Come to my car. I want to play a song I'm working on.' I immediately loved it because it reminded me of the Beatles' song 'Yesterday.'?" A veteran rocker from numerous bands of yesteryear, including the Joe Perry Project and Farrenheit in the 1980s, but now a solo act, Farren said, "I knew Brad had demo'd that song up a number of times, but he never felt it was finished or ready to release."