The Swarm

December 17, 2007

The Indie Rock Universe Strikes Back: Fucked Up and Xiu Xiu file class action lawsuit against Camel and Rolling Stone

David Prince

UPDATE: 1/10/2008: Eye Weekly: Fucked Up in Smoke:

“We feel we were misused,” says Abraham. “Something we’ve worked hard to create was exploited against our will. We want them to admit they were wrong.

“The fact that Fucked Up was mentioned in there wasn’t some great coincidence. This isn’t a case of subliminal advertising, where we’re claiming that there were penises in the shadows — our name is right there. Maybe they thought we were too stupid to know what was going on.”

UPDATE: 12/20/2007: The story hits the wires. See below for links.


Fucked Up vs. Rolling Stone. Fucked up vs. Camel cigarettes. It may be the first time those words have seen a “vs.” in the middle, but they’re right there in print in a legal complaint filed this afternoon in Alameda County, California.

Indie rock bands Xiu Xiu and Fucked Up today filed a class action lawsuit against R.J. Reynolds Tobacco Company (the parent company of Camel cigarettes) and Wenner Media (the publisher of Rolling Stone) alleging the unauthorized use of artists’ names, unauthorized use of artist names for commercial advantage (right of publicity), and unfair business practices, all in regards to the ‘Indie Rock Universe’ multipage advertising section that appeared in the 40th Anniversary issue of the magazine published on November 15. The class action, which was instigated by Xiu Xiu and Fucked Up but filed on behalf of 186 bands and artists featured in the pull out spread, accuses both the cigarette company and the magazine of engaging in “despicable conduct” that was “illegal under settled, unambiguous California statutory and common law.” The lawsuit demands Rolling Stone publish an admission that the artists’ names were used without consent in a spread equal in size to the original ad, as well as seeking actual and punitive financial damages. (Under California law, this could conceptually amount to $750 per issue of Rolling Stone, per band, or a whopping $195.3 billion (Ed. see comments below)).

The full complaint can be found here (pdf).

The class action lawsuit follows closely on the heels of a similar complaint filed two weeks ago by 8 states Attorneys General against R.J. Reynolds, alleging that the ‘Indie Rock Universe’ section and Camel’s ‘The Farm’ promotion violated the 1998 Master Settlement Agreement between 46 states and tobacco manufacturers, and the company could face fines in those cases of $100 million. (A copy of the California complaint can be found here.) But the bands’ lawsuit filed today is the first time that Rolling Stone is being held accountable for its role in the advertising section.

(Scans of all of the pages from Rolling Stone can be found here.)

The 18-page complaint filed today reads partially like a Pitchfork review written by a music-nerd attorney. Xiu Xiu’s work is described as “often thematically dark, marked by non-narrative, evocative lyrics delivered in small fragments, and is varied in instrumentation, which can include koto, digital sound samples, and whistles, as well as bass, keyboards, percussion and guitar – or some combination of some or all or more.” Fucked Up’s work is described as “direct, sonically violent at times, and often characterized as hardcore punk, with the sometimes acknowledged influence of Spanish Civil War-variety anarchism, Viennese Actionism and the Situationist International.” Another section of the lawsuit cites Joanna Newsom’s “complex, rapidly shifting orchestral arrangements acutely attuned, moment by moment, to the content and color and emotional pitch of the narrative;” Stephen Malkmus’ “witty and sometimes gnomic lyrics, angular and arresting melodic lines, and unusual, adroit instrumental invention;” and the White Stripes’ work is described as “instrumentally and vocally spare, without backing by bass guitar, and sometimes reminiscent of early Detroit-area garage rock music harking back to Mitch Ryder, the Amboy Dukes and the Scott Richardson Case, but also partaking of Appalachian folk music and other genres.” The list of bands included in the piece (which the Daily Swarm published last week) reads like many hipsters’ year-end best-of lists.

But the crux of the case is contained in Sections 15–17 of the lawsuit:

15. A verbal description of the multi-page advertising ’ section with its centerpiece foldout is necessarily sequential, abstract, cumbersome, incomplete and indirect (as are verbal descriptions of music). But viewing the actual publication leaves no doubt about its intended and actual impact on the reader: the foldout is placed in the midst of the section, as the main event, preceded and heralded by the Camel-suffused graphics and text on page 64, and by the gatefold pages which appear when one turns page 64, finally to make its dramatic full-spread arrival on the opening of the gatefold pages, with a concluding flourish on page 72, which reprises and reinforces page 64 and the gatefold pages, and functions as a parting impression, reminding the viewer upon his or her exit from this “Indie Universe” that it is Camel cigarettes which sponsors (in every sense) and has put on the whole show for the presumed “indie music”-identified reader. Deliberate and intended use of the artists’ names as an—or even the—essential credibility-generating engine within the advertising apparatus designed to deliver these commercial “goods”—Camel cigarette sales—is immediately apparent, and undeniable.

16. This fact is reinforced by several aspects of the foldout itself, including these: (1) the appearance of the artists’ names amidst what are apparently intended to come off as charmingly whimsical and childlike variations on the graphics styles which grew from the work of comics artists, including R. Crumb, in the San Francisco Bay Area in the 1960s; (2) the.“groupings” of artists perceived by someone working with RS or RJR to be similar to one another in affect, style, genre, or otherwise, similarities signaled by tagline characterizations presumably meant to convey the creator’s/sponsor’s membership among the “indie music” cognoscenti; and (3) the insider’s-wink-and-nod subtext of the ad’s professed support of “underground” music , via the “The Farm” website (another marketing tool) and otherwise. The intendment of the entire multi-page advertising pitch generally, and the foldout in particular, is in its essence an effort at ingratiation, insinuation into target readership favor, and association in readers’ minds of Camel members of the target audience) which defendants planned, predicted or hoped would be generated by the use of the ersatz taxonomy of “indie rock.”

17. The foldout is described in one of three entries under the heading “Special Foldout Sections” in the lower right of page 18 of the issue’s table of contents . The first entry is “The Rock & Roll Quiz”; the third is “The Future of Music. ” The middle entry, headed “the Indie Rock Universe ,” bears these three lines in small font: “We [sic] map out the ever-expanded all-cosmos, from the Masters of the Universe (Sonic Youth, Arcade Fire, The White Stripes) to the Second-Album Black Hole (Clap Your Hands, Say Yeah) . Page 65.” The entire “Indie Rock Universe” entry occupies 5% or less of the space on page 18. But it is obvious to any reasonable person viewing the actual offending foldout in its setting when one comes across it, that it is the star attraction of a carefully designed and executed marketing and advertising pitch for Camel cigarettes. Indeed, that is the only possible impression that can be left on the mind of any sentient twenty-first century being with eyesight.

In other words, the lawsuit asserts Rolling Stone actively colluded with Camel in creating the “Indie Rock Universe” cartoon to be specifically placed in the midst of Camel’s Farm advertisements, to associate these musicians and bands with Camel cigarettes’ professed support of the independent bands, labels, and rock music scene. The success of the case will hinge on the bands and their attorneys convincing a jury of the truth of these allegations.


Other news sources:

Associated Press full
Associated Press brief
Globe and Mail [Toronto]
MTV News
(see all)

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