Thursday, May 08, 2008

Back to Court Today, May 9th...A history of litigation

We go to back to court, today May 9 in Boston. For those of you who don't know, I am being sued for copyright infringement by William V Aguiar Grand Master, of the Black Dragon Fighting society. This case is concerned with the making of the film and my lack of interest in committing $10,000 dollars for access to an archive that may or may not exist. I claimed Fair Use for the materials on my website and in my film and Mr Aguiar decided to take me to Federal Court. After several months of delays and problems with timely filings we asked for a default judgement.

Mr Aguiar, originally filing his case against me Pro Se, on his own behalf, has at the 11th Hour, today obtained counsel through the Lawyers for the Creative Arts in Boston. This is after he filed with the court to continue his case Pro Se, having failed to obtain a lawyer this past 7 months.

How this will fly with the Federal Judge remains to be seen. He told the judge he was proceeding Pro Se, then shows up to court last minute with a lawyer potentially further delaying the case. I will know the outcome by end of the day tomorrow.

2008 is the anniversary of the Aguiar family's attempts at extracting finances and claiming copyright ownership and dominance over the name, image, likeness and movements of Count Dante.

In 1998 they went after the rotund, well-trained Wrestling Rock Musician Bob Calhoun, who called himself Count Dante. Back then he was a well known member of the Incredibly Strange Wrestling League. He writes about Ashida Kim and Willim Aguiar, Jr., the father in his new book, Beer, Blood and Cornmeal: Seven Years of Strange Wrestling.

With permission I have excerpted it below.
The World Wide Web and the information age, which had beet touted by Al Gore and trumpeted by Wired magazine throughout the 1990s, had finally arrived during the decade's waning years. The Internet and the Clinton-era prosperity that came with it slammed San Francisco's club scene like an 8.5 quake on the Richter scale. It was called the end of history, and for people in the local music scene.. it felt like it.

People used to relocate to San Francisco for the purpose of being eccentric in a way that whatever red state hellhole they hailed from wouldn't allow. They came to come out of the closet. They came to bang on amplified pieces of scrap metal in art noise bands. They came to protest something - anything. They came to shake their bare asses in suspended cages at the Folsom Street Fair. They came to drive as many pieces of metal into their faces and genitalia as they could stand and still be able to get a job serving the public while looking like an H. R. Giger etching. The dot-corn boom changed all of that. In 1998, people came to San Francisco to get rich.

The Count Dante web site had only been up for a short time before we started getting some really strange e-mails. Of course, that sort of thing is to be expected when you claim to be the "deadliest man alive" and take your name from a comic book kung fu master. The web was still a new and unfolding universe in 1998. Its ability to put you in touch with people that you would otherwise never want to talk to was just being discovered. Its capacity for enabling unending harassment was largely unknown.

The first odd e-mail came from somebody calling himself Yoshi. "Master Dante," it opened, "Master Ashida Kim is under attack and needs your assistance!"

I thought that it was just a joke and filed it away in a received messages file without sending a reply.

A little while later, Yoshi wrote me again and better explained himself:

Greetings from the _REAL_ Black Dragon Fighting Society! We are pleased to see you keeping the name of Count Dante alive. Would you like to meet with us and become an officially sanctioned member of the BDFS? Ashida Kim is the current Grandmaster, and he says he would be happy to appear with you on stage (he judges a number of wrestling events himself). Looking forward to your reply. Yoshi - Black Dragon Tong of Retribution

Yoshi included a hypertext link to Ashida Kim's website at the end of the e-mail. Kim's web page was one to envy for its combination of utter lunacy and P. T Barnum self-promotion. Ashida was only pictured in full black ninja regalia with most of his face covered. Like the original Count, he was racially ambiguous. He could have been Asian but may have been just a strange looking white guy underneath all of those hoods and cloaks.

He was the author of several sensationalistic martial arts manuals with lurid covers that recalled the spirit, if not quite the verve, of Count Dante's comic book ads. Most of the books had the word ninja in the title. There was Ninja Death Touch, Ninja Mind Control and Ninja Secrets of Invisibility. Kim also republished the original Dante's World's Deadliest Fighting Secrets. Ashida no doubt used his heightened psychic awareness via ninjitsu to sense the work's public domain status.

While his treatises on mental manipulation were plenty provocative, his most boffo title had to be X-Rated Dragon Lady. The cover photo depicted a naked Asian woman mounted on a white guy. In this indispensable volume, Ashida claimed to show you "how to use having your clothes ripped off into an advantage."

Not to be outdone, however, was Kim's own sexual memoir titled The Amorous Adventures of Ashida Kim. The cover photo looked like it was taken during the same session as the cover for X-Rated Dragon Lady. The web copy boasted that the book was soon to be a major motion picture. If only.

I wrote back to Yoshi and was nice enough. Although having Ashida Kim appear onstage with me was mighty tempting, the guy was just too weird to be entirely harmless.

Barely a week went by before Ashida Kim himself wrote me:

Most Honorable Count: So very good to find your webpage and know that you are alive and well. Gee! We all thought you were dead, Ha! Of course, you are not the original Count Dante, the one I met in 1968 in Chicago, but, since we of the Black Dragon Fighting Society do strive to carry on his tradition, we are honored that you have chosen the paths of professional wrestling and music and wish you the best of luck in both of these endeavors. As Grandmaster, I have some other wrestling contacts in South Africa and Australia I could place at your disposal. We have put on several Kick-Punch-Throw, win by Pin-Submission- or Knockout, bouts here and overseas. Or, perhaps there are some other projects we might find to be mutually agreeable. If I may be of any service, please do not hesitate to ask. I remain, Ashida Kim, the NINJA.

I continued my correspondence with Ashida Kim but remained non-committal. He wrote me back and used the word "HA!" a lot to punctuate his sentences. He claimed that he had fought side-byside with Count Dante against the Chicago police force during the 1968 Democratic Convention. His ability to render himself invisible helped him survive although he was outnumbered and outgunned. He commended me on discovering the "value of rhythm in combat and entertainment." Kim also talked about Dusty Rhodes' epic feud with the ninja Kendo Nagasaki in the Florida wrestling circuit during the 1970s as if the fights were real. Ashida Kim was amazing. He was nuts.

It wasn't long before another faction of the Black Dragon Fighting Society e-mailed me. They weren't nearly as nice as Ashida Kim:

Subject: The Illegal Use Of The Name Count Dante To Who Ever You Are! I am writing this letter to inform you that you are using copywrited [sic] name. You must stop this illegal activity or the Black Dragon Fighting Society will be forced to take legal action against you. If you have any questions about the allegations, you may reach Grand Master Agular of the Dan-Te system at: Bill Aguiar's Self Defense Institute 281 South Main St Fall River, MA 02720 (508) 679-8188 Marcus W. Black Dragon Fighting Society Honorary Member

I wrote back to Black Dragon Fighting Society Honorary Member Marcus W. and politely explained to him that the web page was a parody and that parody was protected speech. Three days later, he wrote back:

Dear Mr. Dante?, As you may know, the real Count Dante died in 1975. After his death, a close friend of mine and his, Bill Aguair, was given the write [sic] to carry on his name. A name in which is copywrited [sic] through his school. Grand Master Aguiar trained with the Count and became the one to carry on and teach the Count's sytle [sic] of fighting, Dan-Te. The Count and Grand Master Aguiar started the Black Dragon Fighting Society. They also puplished [sic] a book called "The Worlds Most Deadliest Fighting Secrets" Something else that is copywrited [sic], which you use. Also might I add that Master Aguiar has been aware of who you are for some time now. When I talked to him on Friday, after I saw your Web Page, he instructed me to inform you of what you are doing. Master Aguiar told me to inform you that you are to stop using the name or he will be forced to seek legal action. Marcus W.

It struck me as odd that this Bill Aguiar, who was reportedly so tough that he could deflect arrows with his bare hands, delegated his dirty work to hapless karate students who were in severe need of a spell-check program. I decided to ignore them, but this only made them more pissed off. They wrote me again. This time they got even nastier:

The Black Dragon Fighting Society located in Fall River MA and headed by Supreme Grand Master William V Aguiar, whom was just nominated to the martial arts hall of fame, is the only official and authorized BDFS. You are a liar and a thief. If you were here now Master Aguiar would rip the skin right off your face. His book Worlds deadliest fighting secrets is copyrighted and any proceeds you are making from it is [sic] illegal. Get a life instead of trying to steal someone else's. Master Aguiar is always accepting challengers for no holds barred death matches. Do you have the guts to accept his challenge? You can use the money you are stealing from him to pay for your plane fare and headstone in advance. TROY CITY Specialties & Gifts Your Gift Super-Store in a Catalog. www.gearworks.net/troycity troycityspecial@webtv.net

Now this was getting seriously stupid. Even dumber than all the lame third-party threats was the fact that it was signed "Troy City Specialties & Gifts: Your Gift Super-Store in a Catalog." I clicked on the link that they so conveniently included at the end of the e-mail and found that Troy Cities Specialties sold gaudy home decor, potpourri collections and Beanie Babies out of somebody's house in Maine. I wasn't all that menaced by any Black Dragon Fighting Society that also doubled as a dealer in crochet toilet paper covers.

I e-mailed them back to tell them just how stupid they were. "The next time that you go and threaten somebody with death and dismemberment," I wrote, "please remember not to include the link to your home mail-order gift store. You still have no idea who I am but I now know where you live and how you make your money." I wasn't going to drunkenly try to affix blasting caps to their front door or anything like that, but the level of sheer idiocy of whoever sent me that e-mail deserved a slap in the face.

I quickly received the following back-pedaling reply:

Look, I do not want to be your enemy. In fact I wish all people including you the best of luck in their lives. I did not threaten you. I only stated what I believe Master Aguiar would do to you himself. I am not associated with the BDFS and really it is none of my business about what goes on as far as the BDFS but it upsets me greatly to see people ripping off someone who put their blood and guts on the line to achieve what Master Aguiar has only to have it stolen. Your page and act may be a parody but you do not state that on your page, and lam sure you are representing yourself as the genuine Count Dante whom has been dead for over 20 years. My words may have been harsh and for that I apologise [sic] but come on, do you not see my point. Master Aguiar has in the past put his life on the line fighting by the real counts [sic] side to achieve what he has. He doesn [sic] deserve to be ripped off. Ashida Kim has especially gone to [sic] far as he even is selling Copies of the worlds deadliest fighting secrets that he is not authorized to. Its [sic] just unjust.
He still included the link to Troy City Specialties and Gifts at the bottom of this e-mail.

The Fall River, Massachusetts, sect of the BDFS soon erected their own website. It was adorned with lame blinking text and twirling skulls. They promised that you could become a member of their BDFS by passing through a "trial by fire" in a "ritual of blood." They had a merchandise page that was decorated with clip art of balloons and clowns from which they sold stun guns, paint guns, swords, knives, $ o copies of World's Deadliest Fighting Secrets and something called the Dead Book. In short, the site looked as if was designed by a severely disturbed thirteen-year-old.

Ashida Kim and Bill Aguiar's crew were locked in a vicious dispute over who was the real heir apparent to the Dante legacy. Unlike in Dante's time, when dojos were stormed, lives were lost and arrests were made, the dojo wars of the postmodern era were fought exclusively in cyberspace. Ashida Kim and Bill Aguiar chose to settle their differences like the true followers of an ancient warrior code that they purported to be: they endlessly flamed each other's message boards.

As a staggering barrage of hypertext insults flew between Kim's and Aguiar's underlings, a letter from the man himself, William V. Aguiar, arrived at my band's post office box. The missive was composed on Black Dragon Fighting Society stationary that I would kill or die for. The original Black Dragon logo from Dante's comic book ads was centered on top of the page. In the upper left corner was Dante's unimaginative coat of arms from one of the opening pages of T[he World's Deadliest Fighting Secrets. Underneath the Dante family crest, small but bold text read: "House of Dante, WILLIAM V. AGUIAR, 2nd Patriarch." Aguiar considered himself to be more than just the inheritor of a forgotten fighting system. If his stationary was any indicator, he thought of himself as a regal heir.

In the letter, Aguiar informed me that he had obtained a federal trademark on the BDFS logo and its clip art dragon as well as the exclusive rights to teach something called "The Count Dante Fighting System." He even gave me the courtesy of supplying me with the registration numbers. The letter was a formal cease and desist order that didn't come from an attorney but from a man calling himself "Supreme Grandmaster of the Black Dragon Fighting Society"

That letter had the potential to deliver a financial death blow to my meager musical operations. I had invested a serious amount of time and energy into perfecting my version of the Count Dante persona. I thought of changing the name to Lord Dante or King Dante but nothing really had the same ring to it. Everything else just sounded incredibly lame. I wished that I had just called myself El Dante, which was what everyone seemed to call me for the first year or two I played around San Francisco. I wished that I had been endowed with the foresight to come up with a name that sounded vaguely like "Count Dante and the Black Dragon Fighting Society" when I first started out instead of opting to lift the name wholesale. I wished I had done those things, but I hadn't.

As the information economy advanced, intellectual property became the coin of the realm. Even the dimmest among us were aware of this new reality. During this time, it seemed as if every band in San Francisco was getting hit with cease and desist letters from somebody. This little hard rock band called Mack Truck was served with some especially nasty papers by the attorneys representing the Mack Truck corporation. I guess that this major freight vehicle manufacturer didn't want to risk being confused for a bunch of short guys with Gibson Les Pauls. One band called the Stitches sued another band called the Stitches. Band fliers for Stinky's seemed to be littered with disclaimers underneath the current names explaining what the bands were called before the legal papers came. It was getting out of hand.

Ashida Kim, William V. Aguiar and I were all set to play a legal game of chicken over what was in reality a piece of found art. None of us created the Count Dante name. None of us stormed the dojos or placed the comic book ads. We were all just pretenders to the throne and keepers of the flame at the same time. The hairdresser who transformed himself into Count Dante through sheer marketing genius and martial arts mastery was buried in Chicago in what I would later find out was an unmarked grave.

I kept on wrestling women and playing with the band. I didn't take the bait. I didn't flame anyone's chat room and figured that if I was going to navigate through this mess, then placing myself above the fray was the only way that I was going to do it. No matter what, I wasn't going to cave into some badly spelled c-mails. Aguiar was going to have to drop some money on a lawyer before I changed a thing.

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And this is where it all began. 10 years later they still struggle to claim copyright and intellectual property ownership over the name, trandemarks and movements of a man dead 33 years. More news to come this weekend. Buy Beer, Blood and Cornmeal. It will have you in stiches. I read it on the bus and I am always laughing out loud making people stare at me.

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