By Brian Ives
Attorney Francis Alexander Malofiy likes to go after big adversaries in the courtroom. He recently made headlines when he announced that he was representing the trust of the late Spirit frontman Randy California and founding Spirit bassist Mark Andes in a copyright infringement suit against Led Zeppelin because of similarities between Zep’s “Stairway to Heaven” and Spirit’s “Taurus.” They are also filing an injunction that would block the upcoming reissue of Led Zeppelin IV, which contains the song.
But Malofiy just had a rather large setback in another case against a high-profile artist: Usher.
According to The Hollywood Reporter, Malofiy was representing Dan Marino (not the legendary football player), who was suing Usher over the song “Bad Girl,” which he originally co-wrote with his former songwriting partners William Guice and Dante Barton.
During the trial, however, Judge Diamond spoke against Malofiy in particular; filing a 22-page Sanctions Memorandum against him (which you can read here), saying that the “Defendants have shown clearly and convincingly that Attorney Francis Malofiy has acted disgracefully: lying to an unsophisticated, impoverished, unrepresented Defendant, thus convincing that Defendant to expose himself (probably baselessly) to substantial liability.” That “unrepresented Defendant” was William Guice, whom he reportedly duped, telling him, “Don’t worry about it. [Marino] is not coming after you, it’s everyone else,” and then convinced Guice to sign an affidavit admitting he failed to give his client credit for writing and producing the song; he also recorded a conversation with him without his knowledge.
The Judge’s memorandum also said, “Malofiy also needlessly increased discovery costs. Denying Plaintiff the ‘fruits’ of Malofiy’s misconduct and requiring Malofiy to pay these increased costs are the least sanctions I can impose.” He concluded, “Whether Malofiy should be removed from practice is a question properly answered in another forum.”
Whether or not he will be removed before officially filing the Led Zeppelin lawsuit remains to be seen. Malofiy is also representing Spirit’s Mark Andes in a separate lawsuit against the Rock and Roll Hall of Fame. Andes is also a former member of Heart, and along with the band’s ex-drummer Dennis Carmassi, is suing the Rock Hall for using their likenesses in the band’s induction at the 2013 ceremony, despite the fact that they weren’t included in the induction.
Radio.com has acquired a copy of the official complaint, which notes, among other things, that “Upon Heart being inducted to the Hall of Fame, Andes and Carmassi’s fans and fellow musicians from around the world congratulated them on their success after seeing their images used and songs referenced by the Hall of Fame. Andes and Carmassi, humiliated, had to inform their fans and peers that they were inexplicably not chosen for induction.” The complaint isn’t asking that Andes and Carmassi be inducted into the Rock Hall, but it claims that the suit is “an action to protect the rights, reputations, and likenesses of Mark Andes and Dennis Carmassi through the causes of actions false light invasion of privacy, misappropriation of name and likeness invasion of privacy, injurious falsehood, libel, slander, and right of attribution falsification of rock and roll history for Defendants’ willful and unauthorized use of Plaintiffs’ images and likenesses.”
Most would agree that it’s a disappointment to not be included in your band’s induction into the Rock and Roll Hall of Fame, and the matter of who is and isn’t included has been an issue over the years. Just this year, that was an issue when original Nirvana drummer Chad Channing wasn’t inducted; meanwhile, no KISS members beyond the founding four were inducted, much to Gene Simmons and Paul Stanley’s chagrin. So if that complaint makes it to court, other bands will surely be watching the case closely. But whether or not that particular case has any merit, for now at least, the credibility of lawyer bringing the case to court is seriously in question.