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I finally did it today. I purchased my first original Tacomic. After what seems like months of innuendo, I sealed the deal with Tacomic creator RR Anderson at this afternoon's Frost Park Chalk Off, happily handing over an appropriate $66.66 for the Girl Trouble vs. Gorilla Productions Tacomic Anderson completed and posted on FeedTacoma in April.
Anderson created this particular Tacomic in response to an ongoing lawsuit pitting Tacoma's iconic Girl Trouble, and most specifically drummer Bon Von Wheelie, against Ohio's Gorilla Productions, a company that books shows at clubs all over the country (often times "battles of the bands"), requiring the bands booked (usually young and impressionable) to sell the tickets to these shows - with Gorilla taking a substantial chunk of the show's profits.
Von Wheelie and Girl Trouble see this practice as "Pay to Play" - an age-old and somewhat murky term that's nonetheless understood when its seen in practice within independent music scenes. At its base, it means exactly what it sounds like - a club or booker requiring bands (or the artistic talent being taken advantage of) to actually PAY for the chance to play. It's bad news, and it's the kind of practice that ruins music scenes.
In response to what Von Wheelie sees as more and more pay-to-play schemes popping up - run by Gorilla and other similar companies like Big Time Entertainment - the Girl Trouble drummer created a website - neverpaytoplay.com.
Gorilla didn't like it. The really didn't like the fact that when you type "Gorilla Productions" into Google, the second option that pops up is "Gorilla Productions Scam" - which leads to (among other things, now days - especially since the lawsuit) Von Wheelie's anti pay-to-play Web site.
So Gorilla sued Girl Trouble, with Von Wheelie's website at the root of lawsuit, seeking in excess of $25,000 in damages.
Here's the story I wrote about it back in April, when the Weekly Volcano was first to break the story.
In preparation for my meeting with Anderson today, and the purchase of his Girl Trouble vs. Gorilla Productions Tacomic - which depicts the members of Girl Trouble being attacked by a giant gorilla with disturbing nipples wielding a barrel (ala Donkey Kong) with the acronym SLAPP sketched on it (Strategic Lawsuit Against Public Participation) - I checked in once again with Girl Trouble lawyer Wade Neal of Johnson, Graffe, Keay, Moniz & Wick, LLP - a man perhaps better known as a guitarist for Seaweed
According to Neal, who is only part of the legal team representing Girl Trouble, as the band has also been forced to procure representation in Ohio where the lawsuit was filed and where the case (if there ever is one) will be heard, the proceedings are in a bit of a "holding pattern" at the moment, with the Ohio judge currently waiting for Gorilla to file a "sur-reply" based on an important case that just concluded a few weeks ago that deals with jurisdiction over comments made via the Internet. Girl Trouble has requested the lawsuit be dropped on the basis that Ohio courts don't have personal jurisdiction over a Web site published by Von Wheelie in Washington State, and that Von Wheelie's Web site is passive, non-defamatory and protected under Freedom of Speech.
Naturally, Gorilla disagrees - saying Von Wheelie's Web site is more than a "gripe site," its intention is to cause intentional harm to the company - specifically within the state of Ohio - and Girl Trouble has adequate connections to Ohio to give courts jurisdiction.
The nuts and bolts of this argument (whether Ohio has personal jurisdiction) come down to whether or not Von Wheelie and Girl Trouble intended to do specific harm to Gorilla in the state of Ohio and what kind of Web site the court concludes Von Wheelie's neverpaytoplay.com to be. By the sound of things, we should have that decision shortly. Girl Trouble and Neal remain confident the lawsuit will eventually be dropped, and the band will not be forced to travel to Ohio to defend itself against what it deems a "frivolous" complaint.
"We are hopeful that we will be dismissed," Neal tells me. "However, we don't know how the judge is going to rule, although I am confident that in Girl Trouble's case, they should not be subject to jurisdiction in Ohio courts."
Neal provided the Weekly Volcano with copies of motions filed in the case, including Gorilla's original response to Girl Trouble's motion to dismiss the case, and a motion by Girl Trouble that followed.
Highlights from Gorilla, specifically in regard to Girl Trouble's motion to dismiss the case based on lack of personal jurisdiction:
The web-site in question is not a passive "gripe-site;" as business may be conducted through the sight, in the form of compact disc and t-shirt purchases.
Under the Calder, supra "effects test," Ohio and the local scene is mentioned numerous times in an effort to convince Ohio residents that Plaintiff is a "scam" company. As a result, Ohio feels the brunt of the harm. Additionally, the litigation at issue is discussed on the website making an additional impact on Ohio.
Highlights from Girl Trouble's response to the court in regard to Gorilla's claims:
Plaintiff Gorilla Productions, Inc ("Gorilla") fails to recognize that Ohio courts generally do not find jurisdiction over non-resident defendants who operate "passive" websites that provide only information and opinion, in the absence of direct targeting of the forum state, intentional torts directed at the forum state, or some other basis for jurisdiction in conjunction with statements made on the Internet, such as business transactions with the forum state.
In addition, Gorilla admits that (Von Wheelie's) site www.neverpaytoplay.com ("NPTP") is "passive" and "not actionable," on its own, even under Ohio's "Long-Arm" Statute. In addition, the separate website www.wig-out.com ("Wig-Out"), provides no basis for jurisdiction on its own or for statements made on NPTP. Moreover, Gorilla provides no evidence for Defendants' connection to acts such as sending private emails to Gorilla, or "threatening" to contact consumers about the company. In any event, private communications are not actionable as plead by Gorilla and cannot be used as a basis for jurisdiction.
NPTP also does not show any "hope" that NPTP has a "devastating effect" on Gorilla in Ohio. No such intent to cause negative effects can be found on NPTP. NPTP does not discuss any "dastardly plan" to harm Gorilla, as in Kauffman. Id., at 3 ¶13. In contrast, the statements specifically complained of in this case, such as "[t]hey have a big official website gorillamusic.com where you can see all the cities the giant Gorilla head is taking over," "paying attention to detail doesn't seem to be their strong suit," "...working hard and working hard for Gorilla are two different things," or "[d]oesn't it seem sort of strange for a beer company to be sponsoring an all-ages battle? Just a thought," simply do not rise to an "intentionally harmful" level, even under a prima facie standard. (Motion to Dismiss, Exhibit C.6).
In addition, NPTP's wry comments are almost completely focused on Gorilla's actions outside of Ohio - Gorilla hires employees and books concerts in cities primarily outside of Ohio, and has specifically reached out to Washington State to conduct business and hire local employees to set up each concert. Gorilla has even asked Defendants to perform at Gorilla concerts in Washington State.
Defendant (Von Wheelie) created a passive "gripe site" that is intended to inform readers about Gorilla and similar companies. There can be no dispute that NPTP does not target Ohio readers over others. NPTP talks almost exclusively about Gorilla's contacts outside of Ohio.
Gorilla's response fails to show that NPTP creates jurisdiction based on defamation, invasion of privacy, or any of its other claims. Gorilla agrees that NPTP is "not actionable" without other acts tying Defendants to Ohio. Gorilla has failed to provide any evidence of additional acts. Thus, NPTP does not create jurisdiction over Defendants under Ohio statute. Even if the statements at issue are presumed to be defamatory or otherwise tortuous under Ohio law (they are not), due process considerations prevent the assertion of jurisdiction over defendants in this case. For the foregoing reasons, Defendants respectfully request that this Court dismiss Plaintiff's Complaint and Amended Complaint, with prejudice.
Stay tuned to the Weekly Volcano for continued coverage of the ongoing legal battle between Gorilla Productions and Tacoma's Girl Trouble.