Citing Yorick, Legal Counsel Wittily Swats Away Legal Challenge to Derek Hess Skull Sculpture

Over the summer of 2018, there arose a contentious legal dispute between two Cleveland-trained artists, Richard VanOver and Derek Hess, which has of late reached a settlement. VanOver, a graduate from the Cleveland Institute of Art who is currently active in his original home of Buffalo, New York, sought compensation deriving from the online sale of statuettes of Suicide Note, an image Hess had created in 2008.

Hess and VanOver have known each other for decades; they knew each other while they were students at CIA. According to Hess, VanOver was a regular at the Euclid Tavern when Hess was serving as booker there in the early 1990s. In 1996, VanOver sought permission to create a sculpture based on a graphically explicit image Hess had concocted for a Boss Hog show at the Euc earlier the same year. Hess granted permission for VanOver to create a prototype but did not end up authorizing production of the result.

In order to promote the music awards issue of 2008, the Cleveland Free Times commissioned an image by Hess to appear on the cover of March 5-11, 2008, issue of the alt-weekly. CIA graduate and local musician/artist/writer Ron Kretsch, serving as art director of the Free Times at the time, commissioned an image from Hess and received a striking image of a musical note with a skull serving as the “head” (as the round part of a note is called). Derek had called the image Suicide Note, and it was duly used as part of the cover of that year’s music awards issue. Kretsch told CAN Journal that according to Free Times policy at the time, artistic rights for any covers reverted to the artist after thirty days, as happened in the case of Hess’s Suicide Note.

According to VanOver, in 2013 he approached Hess to pursue collaboration on a sculpture based on one of Hess’s images. Hess agreed, proposing Suicide Note as the image to work on. Hess told CAN Journal that he regards Suicide Note as “a signature image.” Hess and his business manager, Marty Geramita—having noticed that they were nearing the limit of wall space of Hess’s fan base—were only too happy to explore the sale of official Hess knickknacks that might take up space on the horizontal surfaces Hess’s fans might have access to.

VanOver explained to CAN Journal that his proposal to Hess was that “I would not charge them for prototyping, only for resin and silicone supplies and I would make my money on the production side. They would pay me to produce the production run.” In the event, Geramita’s sales-oriented requirements quashed some of VanOver’s favored ideas, for instance his desire to execute a “high-end bronze art piece.”

The artist and sculptor in happier times

VanOver’s experience as a sculptor did prove useful, however. “I even drove down twice to Cleveland to show him in person,” VanOver stated. “Derek wanted a certain texture on the piece, so while I was in his studio I let him add texture that he wanted in the clay, based on a specific ’70s sculptor that had heavy strokes of clay. I showed him that by using the alcohol torch he could achieve that look.”

VanOver created a sculpture of Suicide Note but Hess, being not enthusiastic about it, requested an updated version, for which purpose Hess furnished VanOver with the plastic skull that would eventually be used to create the final molding. Amusingly, Hess happened upon the skull in the gift shop of the Cleveland Museum of Natural History.

After VanOver’s work visit to Cleveland, he “proceeded to mold the piece to get a prototype so we could get pre-orders. The quantity was 100 pieces.” VanOver referred Hess and Geramita to a Los Angeles-based manufacturing company called Six-Five Studios, headed by John Duncan. Subsequent information would lead some to conclude that VanOver had a kickback arrangement with Six-Five Studios.

On February 15, 2015, due in part to his father’s battle with cancer, VanOver sent an email to Geramita withdrawing from the project. A short while later, Geramita paid VanOver the amount of $50 for “supplemental material costs.” Geramita later used Mountain View Studios in Greeneville, Tennessee, to produce the run of one hundred Suicide Note statuettes.

In October 2017, Hess offered for sale ninety copies of a twelve-inch-tall sculpture based on Suicide Note. The list price was $175, but for a limited period eagle-eyed Hess fans were able to purchase one for $160, as many indeed did. Geramita told CAN Journal that the Suicide Note experience established to their satisfaction that there was a strong potential market for Hess statuettes.

VanOver’s fiancée, Natalie Wille, discovered the impending sale of the Suicide Note statuettes on Facebook, and was irritated to notice that VanOver had not received a sculpting credit. (Hess and Geramita updated the Facebook listing to give VanOver due credit with alacrity, however.)

After Wille got in touch with Geramita, the latter stated that it was his intention to “take care of” VanOver even though they had no contract in place. In the short window between Wille finding out about the sale of the sculpture and the item’s production, VanOver reached out to Geramita and requested “credit on the packaging” as well as a “production piece free of charge.” Over the last week before production, Geramita was able to alter the packaging and include the VanOver credit.

On December 17, 2017, VanOver contacted Geramita with an additional demand: that Hess pay VanOver $4,200 for services rendered. VanOver’s claim was that Hess had infringed on VanOver’s creation—meaning the sculpture. Understandably, Geramita was stunned to hear this news at such a late date, but the next day he nevertheless offered VanOver a choice of $1,000 or ten percent of the net profits (which would have been somewhat less money). VanOver rejected the offer.

In February and March 2018, VanOver’s attorney James Niehaus contacted Geramita with the demands that Geramita pay VanOver $2,200 and also relinquish 3D rights to the sculpture. VanOver agreed to Geramita’s reduced offer of $1,500, but Geramita additionally sought to block VanOver from producing his own versions of Suicide Note. Obviously, it was in Geramita’s interest to maintain control over what versions of Suicide Note would enter the market. Negotiations bogged down over the question of the 3D rights and the matter of the confidentiality agreement.

This spring, Brian Asquith, a third-year law student at Cleveland Marshall College of Law in Cleveland (and also a passionate fan of one Derek Hess) learned of the dispute. As Asquith told CAN Journal, the pivotal question for him was, “How much creativity did VanOver bring to the project?” Regarding VanOver’s claims as exceedingly thin, Asquith urged Geramita to seek legal counsel, and took the matter to Cleveland Marshall professor Patrick Kabat. In short order, Kabat and Asquith whipped up a stylish twelve-page letter replete with legal citations and quotations from Shakespeare (“Alas, poor Yorick!”). The defensive posture rested on the claim that VanOver’s artistic contribution was minimal and that no work-for-hire was in place.

Kabat, who in recent years has been active in New York City as first-amendment counsel in cases involving HBO and The New York Times, saw nothing amusing about VanOver’s attempt to stifle Hess’s access to the market. Kabat told CAN Journal that “it seemed like there was nothing there” and that “it seemed like a grab”; his immediate reaction was that “there ought to be some pushback.” “What was the original contribution of Richard [VanOver]?” asked Kabat. “By instruction and design, it was replicable.”

In order to make the point that VanOver was in no position to suppress iterations of Hess’s image, Kabat and Asquith actually concocted their own version of a “skull-note” made of wax and had Kabat’s law students physically convey the impromptu sculpture to Niehaus’s offices. The first line of Kabat’s letter to Niehaus ran: “I’ve never sent opposing counsel a skull before.”

As Hess commented to CAN Journal, “I think Rich is a nice guy and I’m sorry that things played out the way they did.” For his part, VanOver told CAN Journal, “I’m totally disgusted with this whole situation…It became a legal issue based purely on principle and not on monetary gain.”