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Zydeco vs. Zydeco

Two labels, two compilation albums, one lawsuit. Mardi Gras Records says Putumayo is trying to put it out of business. Putumayo says it's just defending its property.

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Dan Storper, CEO of Putumayo World Music Inc., was in his New York office in September when he got a call from a New Orleans merchant who sells Putumayo's compilations of different world music styles.

The retailer, whom Storper declines to name, allegedly told him that the Metairie-based record label Mardi Gras Records Inc. had "ripped off" Putumayo's packaging for its newest release, Ultimate Zydeco. The retailer said the CD case closely resembled that of Putumayo's compilation disc, Zydeco.

"He said, 'I almost ordered it because I thought it was from Putumayo,'" Storper says in a phone interview. "There is no question in my mind that it was an intentional effort to trade off on our visual style."

The 70 compilation CDs in Putumayo's 85-disc catalog have similar packaging: cardboard or "soft" covers, adorned with folk art-style illustrations in bold colors rendered by British artist Nicola Heindl. The music genres are as disparate as Mississippi blues, reggae and Celtic folk, but all of Putumayo's compilation CDs have the soft pack and Heindl's art in common.

"This has been something clearly visible and clearly related to Putumayo since we started and increasingly since we've been more known," says Storper, who started the record label in 1993. "Obviously I'm upset about this."

In a letter to Mardi Gras president Warren Hildebrand dated Sept. 17, 2001, Storper told Hildebrand to yank the Ultimate Zydeco CDs off the shelves or face a federal lawsuit. Hildebrand and his attorney, Justin Zitler, fired back a response saying Putumayo didn't have exclusive rights to soft CD packs with folk art on the cover and that the Mardi Gras Records CD would remain in the bins.

Putumayo sued last week, alleging that Mardi Gras Records infringed upon Putumayo's "tradedress," a legal term describing a combination of characteristics that create a distinct look for a product. The suit says that Mardi Gras' CD "features artwork that infringes upon Putumayo's tradedress" and "should have known of Putumayo's exclusive rights to the use of the Putumayo tradedress."

Storper believes Hildebrand was trying to hone in on the success of Zydeco, Putumayo's best-selling CD in 2000, which has sold about 100,000 copies since its release in January 2000 and has made up to $800,000 for the world music label.

The suit, filed in U.S. District Court in New Orleans, asks for trademark infringement damages of $750,000; statutory damages of $100,000 for each of the four infringements that Putumayo claims; and $500,000 for losses. The suit also asks for treble damages, punitive damages and attorneys' fees. It also wants Mardi Gras Records to hand over the approximately $40,000 in sales it has made from Ultimate Zydeco since its release last fall.

It's a judgment that Hildebrand says would spell bankruptcy for Mardi Gras Records, whose artists include Rockin' Dopsie Jr., Marva Wright and the Zion Harmonizers. "If [the court] were to rule in their favor on any one of those counts, it will put me out of business," says Hildebrand, who started Mardi Gras Records in 1987 and has built up an 80-title catalog since then. He releases an average of 12 CDs a year, he says: about six compilations and six new releases.

Mardi Gras Records headquarters is basically a large room in a building off Airline Drive that contains several bins of tapes and CDs, three cubicles, and Hildebrand's small office. During a recent visit, Hildebrand and Zitler laid out several CDs on a table. The CDs on display were soft-pack compact discs from various record labels, all of which feature illustrated covers.

Zitler says Putumayo is arguing that it alone can sell soft-pack CDs illustrated with folk art. "It's a combination of the soft pack and the folk art style," he says. "If they have that exclusive right, then we're all in trouble." He points to a recent Buckwheat Zydeco compilation on Rounder Records, which features a soft pack and an illustrated cover.

Hildebrand has released CDs that feature all types of packaging: soft packs and plastic "jewel cases," illustrations and photographs. He says the Ultimate Zydeco CD came out as the second release in his new "Ultimate" line, all of which feature cardboard covers and primitive-style art. He says his ideas for the "Ultimate" line were all his own, not an attempt to resemble Putumayo.

"I spent a lot of time coming up with the packaging for that," Hildebrand says. "I think their position is untenable."

Zitler and Hildebrand say any similarities to the Putumayo compilation are unintentional and that zydeco music naturally goes with folk art. As for the CD covers, both of which feature African-American musicians playing accordions and rubboards, "Well, that's zydeco," Zitler says.

Adds Zitler wryly: "Maybe when this is all over we'll discover that Dan Storper from Putumayo invented folk art. Who knew?"

The Louisiana Music Commission supports Mardi Gras Records' position in this case, according to executive director Bernie Cyrus. The New Orleans-based commission -- an offshoot of the state Department of Economic Development -- had once recommended Putumayo to work with the state Department of Culture, Recreation and Tourism. Officials at that agency say they used Putumayo's CDs in promotional materials and bought air time during Putumayo radio broadcasts.

"For [Putumayo] to have the audacity to sue him for our folk art and our cultural icons -- to be sued by an out-of-state company is absurd," Cyrus says. "It's absurd for them to sue our company when they made their money off our culture."

But Putumayo attorney Richard Duplantier, of the New Orleans firm Galloway, Johnson, Tompkins, Burr and Smith, says it's not folk art that Putumayo opposes. "We're not saying we have the corner of the market on folk art, because nobody does.

"It is a type of folk art used with music that is nontraditional, in compilation form," he says. "It has become part of the Putumayo distinction in every single one of their records, and everyone knows that. Mr. Hildebrand knows that."

Duplantier and assistant counsel June Oswald say that even though Putumayo did not trademark its CD packaging, its distinctive "tradedress" falls under common-law trademark rights. They compare it to Coca-Cola's uniquely-shaped bottle and red-and-white label: two elements that, when put together, convey Coca-Cola in consumers' minds.

Storper says he believes the artwork on the Ultimate Zydeco CD was intentionally created to imitate that of Putumayo's Zydeco. Storper says his suspicions were confirmed on a recent trip to Nashville when he spotted Ultimate Zydeco in a Putumayo bin.

"You can see the similarities in the juxtaposition of the people -- the way they're playing, the basic color palette, the greens, the reds, the style," Storper says. "I am a folk art collector. There are millions of different styles out there, but this is too close to our style; the subject matter is too close. I have no doubt that any logical, rational person could see the overt similarities."

Putumayo says its intention is not to bankrupt a small label, but to protect the unique style that has distinguished its CDs, which it sells in non-traditional venues such as coffee houses and gift shops. "This has nothing to do with New York versus New Orleans, or big versus little companies," says Duplantier. He calls both Putumayo and Mardi Gras Records "small players" in the recording industry.

"It's not about a big company coming down from New York and trying to stomp on a little record company," says Duplantier, who recalls he was reluctant to take the case because he respects Hildebrand. He agreed to do so after he saw the two CDs side-by-side. "When I looked at everything, I said 'This stinks,'" Duplantier says.

"I am very concerned with protecting the rights of the artists and local companies, but I have a very strong belief that you should represent yourself and your business the right way."

Storper says he's sorry his working relationship with Hildebrand has come to this. "They had their chance to settle the matter out of court, and unfortunately, they didn't take it," he says. "I do believe it's affecting our sales. I do believe it's creating confusion in the marketplace, and I do believe that if they continue to market this or related CDs, they are effectively denigrating a product that we have worked hard to build up."

But Zitler and Hildebrand believe otherwise. "There is no court system in the major markets -- New York, L.A. or Nashville -- that would entertain such a claim," says Zitler. He accuses Putumayo of violating a cordial business relationship with Mardi Gras Records that includes, among other transactions, Putumayo licensing the Jude Taylor & His Burning Flames song "Burnin' Flames Special" from Mardi Gras Records for the Putumayo Zydeco CD.

"For a record label to come down here, use our music and try to drive one of New Orleans' strongest labels out of business -- I'd love to know their motivation," Zitler says. "They feel like we just fell off the turnip truck down here in southeast Louisiana. We can produce the music, but if we try and get into the business they'll shut us down."

Zitler has filed a motion to dismiss the case, and a hearing is scheduled in federal court on March 20.

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