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It’s summertime, and Nine Inch Nails has hit the road. Parking lots around concert arenas are filled with young people peddling T-shirts for the band performing inside. The only problem is that in most cases, the souvenir shirts are unauthorized. And the band will not get a nickel of revenue from their sales. A teen-ager selling a $20 T-shirt to earn money for a concert ticket may not seem like a very big deal. But according to M. Kelly Tillery, a Philadelphia lawyer, in most cases the amount of counterfeit merchandise sold outside is equivalent in value to the legitimate merchandise sold inside. He said that most counterfeiters “are like roaches, with literally 200 to 250 people in the parking lot selling T-shirts. A crew of 10 kids gets into a couple of vans, and the individual kids carry five or 10 shirts out of the parking lot, sell them, go back and get 10 more. These kids can sell 300 shirts in a night apiece.” If a concert-goer budgets money to buy a T-shirt but spends it on a bootleg version, the band begins to lose significant revenues from merchandise sales, said Tillery, a partner at Philadelphia’s Leonard Tillery & Sciolla. Lawyers from Oakland, Calif.’s Donahue, Gallagher, Woods & Wood also go after counterfeit merchandise for touring bands. Partner Eric W. Doney said that in many cases, without legitimate merchandise sales, “most tours would not make money.” That’s why firms like his and Tillery’s work with various musicians to help prevent the sale of unauthorized merchandise at performances. In the past, Donahue Gallagher has done much counterfeit-merchandise seizure work for the Grateful Dead and bands that perform with them. Some of Tillery’s clients have included Ricky Martin, Backstreet Boys, Janet Jackson, Hammer, New Kids on the Block, Meatloaf, ‘N Sync, Alanis Morisette and Billy Joel. Recently, he got an order from Philadelphia federal judge Raymond J. Broderick allowing the seizure and impoundment of unauthorized merchandise sold in the vicinity of any Nine Inch Nails concert throughout the nation during the group’s 2000-2001 tour. J. Artist Management Merchandise Inc. v. Nelson, No. 00-3351. Tillery prefers obtaining one order to cover all concerts. Once he gets the order, he sends out press releases to Rolling Stone magazine and other music publications “to get the word out to the counterfeiters,” he said. Doney, on the other hand, is skeptical about single-seizure orders intended to cover all jurisdictions. “Our argument has been that there is no way … any individual district court can claim personal jurisdiction against any unnamed individual anywhere in the U.S.,” he said. Instead, he goes to each federal judicial district in which a band is performing and gets a seizure order, at a cost to the client of about $3,000 per venue. He acknowledged that Tillery’s one-order-fits-all procedure is more cost-effective, but he thinks it might not stand up to review. “When the first person comes in and says ‘Hold it! You don’t have jurisdiction over me,’ there is no answer to that question,” Doney said. Tillery acknowledged that so far no appellate court has tested these nationwide orders. “The bad guys know what they’re doing is bad, and they don’t have the guts to challenge me,” he said. In any case, he is working with several clients to get search-and-seizure orders for an individual concert facility regardless of which artists are performing there. “These are the best,” he said. “They can work for football teams, concerts, ‘Disney on Ice’ and anything else that performs at an individual facility.” And jurisdictional questions do not arise. Tillery, a onetime drummer in a garage band, said that he enjoys his peripheral connection with show business, and that once a client gave him a chance to sit in with a band and play the drums.

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