Wayne Kramer of the legendary 1960s band the MC5 has filed suit in a California court against a political action committee behind the No. on Prop 23 campaign, contending that a commercial widely broadcast in the weeks running up to the election used vintage footage and appropriated his likeness without permission.
The ad spot, now taken out of circulation, opened with three seconds of unidentified footage of the MC5 performing at the Festival of Life in Chicago during the Democratic convention of 1968 (a setting coincidentally getting renewed attention due to the new film “The Trial of the Chicago 7”).
The brief footage is followed by a kidney dialysis patient Janet Gross, saying she “spent 50 years in the music business. I’ve got stories I can’t repeat. I’d still be there if I hadn’t gotten sick.”
Kramer and his reps say the juxtaposition suggests that Gross is referring to Kramer as someone she might have lurid stories about — and that the footage was illegally used, in any instance, since it was unlicensed and could only have been pulled off of Kramer’s social media accounts. The No on Prop. 23 campaign took down the commercial upon getting Kramer’s initial cease-and-desist, but says the footage was purchased.
“It is and always has been solely my decision to endorse or oppose a vote using my face, my music, my performance — my values,” Kramer said in a statement. “I’m no stranger to political action, and it disgusts me that (No on) Prop-23’s $100 million repository for marketing that was raised solely to force their vote did not include a plan to request my consent. It’s my hope that every artist reads this filing and concludes that the use of one’s image is incontrovertibly at the top of a short list of issues to use the courts to fight for.”
More bluntly, in keeping with the tone of MC5 songs like “Kick Out the Jams,” Kramer said, “Give me a break with your jive bulls—.”
In response to the filing, Kathy Fairbanks, spokesperson for the No on 23 coalition, tells Variety: “The producer of the commercial purchased the footage for use. The video clip from more than 50 years ago shows a rock concert from behind and Mr. Kramer claims that his image is in the clip. It was on screen for less than three seconds. Upon receipt of his request, the spot was edited to remove that clip. We are aware of his lawsuit.”
Margaret Saadi Kramer, manager of Wayne Kramer and the MC5, says that “we believe (the clip) was sourced from his socials. We went into the national archives and unearthed the Festival of Life footage that the MC5 performed as the only music group to show up at the Democratic convention and what ultimately became the riots. That footage you see is five guys from Detroit having taken their lives into their own hands. It’s Department of Defense footage that we sweetened, mastered, put a new score on, and put on Wayne’s socials to educate people about what happened at the 1968 convention in Chicago.”
She added that “the Department of Defense has not done anything with” the footage, “but it has been viewed tens or hundreds of thousands of times in the aggregate across Wayne’s fan base. … We were bombarded with private messages to our phones, in our DMs, in Facebook questions, from people who were very confused” about whether he was endorsing the cause, she said.
“For Wayne, there were two last straws,” Saadi Kramer added. “The first being that the way the piece was cut intimated that the guys you just saw for five seconds in the intro scene were guys who the woman who was a kidney patient had a relationship with that she could not discuss. There was this underlying prurient side to it that bummed him out. But that’s rock ‘n’ roll. The worst part was that the ‘no’ vote was being pushed so hard with a war chest that has now grown to $105 million. It appears that this approach was not done through lack of knowledge. … Perhaps someone rolled the dice and thought the misuse of the image would have fallen into the caveat of ‘This is how we do it in politics.'”
When the Kramers sent a cease-and-desist through their attorney, “they did recut it,” she says, “and if you go to No on Prop 23 now you do see a different cut. But the damage is done.”
The complaint was filed Oct. 16 in U.S. District Court in the western division of the central district by Kramer’s Chicago-based attorney, Heather L. Blaise. It names the No on 23 PAC as a defendant along with a dozen other individuals and corporations the Kramers believe are associated with the commercial. Although Gross is named among the defendants, Margaret Saadi Kramer does say that Gross “likely had no knowledge of how they were going to cut the piece.” The manager added Monday afternoon that they are in the process of adding to the complaint Hamburger Gibson Creative Agency, who they believe created the spot. (Variety has reached out to Hamburger Gibson for comment.) The filing asks for a jury trial and “compensatory damages in excess of $75,000 for defendants’ unauthorized use of Mr. Kramer’s image, likeness, and identity,” along with additional requests for other damages.
Margaret Saadi Kramer declined to say where she and Wayne Kramer stand on Prop. 23, which would mandate the presence of physicians during treatment in outpatient dialysis clinics, a requirement that many of these facilities contend would drive them out of business and decrease access to medical care. The state’s Democratic party has endorsed the proposition, while the Los Angeles Times’ editorial board opposes it.
“I can tell you that Wayne would not have permitted a license” for the footage, said Margaret Saadi Kramer. “For the last 12 years he has very specifically narrowed his approach to whatever value he is able to bring to a cause to justice reform,” she said, pointing to Jail Guitar Doors, the charity they co-founded 11 years ago with fellow artist Billy Bragg, named after a Clash song and dedicated to providing instruments to prisoners to assist in their rehab. “He is a living example of a changed life through a life of understanding what happened to him when he was not a sober guy — a living testament that change can occur. Whatever power his image and likeness and endorsement does hold, we’re using it for that.”
She also said that Kramer is doing this on behalf of other musicians “who can’t afford to protect themselves and are not in a situation like he is to punch back. Wayne’s motivation and singleness of purpose here is: You have rights. Use them.”
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