Despite the jury’s failure to find trademark infringement on the claim brought against Barry Goudreau, they found that Goudreau had breached a 1983 settlement agreement, from which he had collected artist royalty payments for 33 years for BOSTON songs on which he had never played. Goudreau, who had only performed on 2 of the 8 first album cuts, and a few cameo parts on the second, has collected millions in royalties for songs that Tom Scholz had recorded by playing every instrument except drums.
Prior to trial, the judge had ruled that Goudreau may not hold himself out as an original member of BOSTON. Scholz and Brad Delp, who between them wrote all the songs for the first two BOSTON albums and performed over 90% of the tracks heard on those albums, were signed by Epic Records as the only two original members of BOSTON in February 1976. They alone had recorded six demos for Epic, which had included “More Than a Feeling” and “Peace of Mind” with mutual friend Jim Masdea playing the drum tracks. These recordings won them the Epic Records deal. Goudreau, who was added later to form a live performance band, left the band after just 3 years. His only obligation under his exit agreement was to limit his use of the name Boston in promoting his future performances accurately as simply “formerly of Boston.” The jury found that he has failed to fulfill that obligation.
Scholz defends the decision for bringing the unsuccessful trademark infringement claim saying, “The critical connection between the BOSTON trademark, BOSTON’s music and the positive values that the band promotes, such as education, nonviolence, and animal protection, reminds us that the integrity of artists’ creative works must not be allowed to be devalued or diminished. The songs that Brad Delp and I created have sustained BOSTON’s success and reputation for 40 years.”
“Trademark law exists not just to protect the rights of those who create, but to preserve the legacy and value of their art. Creative work must always be defended when confronted by infringement or misuse,” Scholz said, adding, “Any funds I recover as a result of Goudreau’s contract breach will be given to the worthy nonprofit organizations we have supported for many years.”
Scholz and BOSTON have raised and donated many millions of dollars to charities over the past 30 years.
During the trial, Ernie Boch Jr. was implicated by Goudreau’s lawyer who repeatedly questioned why Scholz hadn’t sued Boch, who had run ads attempting to promote his band “Ernie and the Automatics” with misleading ads, CD packaging, and online videos using the trademark “BOSTON” and touting Goudreau as an “original member.”
According to Scholz, “While it is possible Boch misused the BOSTON trademark in an attempt to promote his band, Boch had no contractual obligations with me regarding the wording of his promotions. More importantly, I believe he had been misled by Goudreau as to his role in the creation of BOSTON, and the extent of his involvement in recording the early albums.” Scholz added, “I do, however, object to Boch’s cavalier use of the name BOSTON. I have worked hard for the past 40 years to make BOSTON synonymous with much higher values than the typical sex, drugs, and rock n’ roll stereotype associated with so many rock bands.”
Most important to Scholz is the ongoing effort to maintain the high standards of BOSTON’s music, to positively influence people’s lives, and to continue to financially support the many worthwhile organizations that depend on BOSTON’s generosity.
“I want to thank the legions of fans who continue to hold BOSTON’s music deep in their hearts. There is nothing more meaningful than the endless support, encouragement and respect from our audience. Their loyalty to BOSTON’s music and message over so many years has made the arduous effort of maintaining BOSTON’s high standards worthwhile.”