Yakety-Yak! Original Coaster Fights Back Against ‘Phonies’

It was July 19, and up at the Westchester County Center in White Plains, N.Y., “a Major Oldies Explosive Concert” was revving into action. The star-studded bill included Bobby Rydell, the Marvelettes, the Coasters, the Drifters and the Platters-groups that years ago made hits out of songs like “Under the Boardwalk,” “Yakety-Yak,” “Charlie Brown” and “The Great Pretender.”

The funny thing was that hundreds of miles away, at an outdoor doo-wop concert at Camp Washington Carver way out in the middle of nowhere in West Virginia, a man in his late 60’s was giving a similar performance that very same day. His group’s name? The Coasters.

The man wasn’t just any singer, he was Carl Gardner, an original Coaster and, by his measure, the only one with the right to use the name that he says he came up with back in the 1950’s. But now, instead of living out his later years in peace, Mr. Gardner struggles to overcome his bitterness at what he sees as fake Coasters popping up everywhere he looks: Harrah’s in Atlantic City, The Today Show , even President Clinton’s inaugural celebration last January. Plucked from Broadway, these Coasters are not the ones who made the original hits or got inducted into the Rock-and-Roll Hall of Fame. In fact, they’re young enough to be Mr. Gardner’s sons-or even grandsons.

“Nobody gives you credit where your credit is due,” he said, speaking from his home in Port St. Lucie, Fla. “I’m very angry with people doing me like this.”

Apart from fighting his anger, Mr. Gardner has been fighting back, adding a sad song to his repertoire. Along with some original members of other groups, Mr. Gardner has been enmeshed in a vast and tangled web of litigation over name rights that his lawyer promises will grow only vaster in coming months. Most recently, Mr. Gardner’s booking agent, JP Productions, has sued Billboard Productions Inc. for putting together the White Plains concert, as well as CBS Inc., whose New York oldies station, WCBS-FM, helped with promotion. Claiming false advertising, the suit, filed in U.S. District Court in Manhattan, seeks to keep any Coasters or Drifters groups (another JP Productions client) that lack original members from performing.

The CBS lawsuit is the latest salvo in a bigger war that centers around a man named Larry Marshak, a fast-talking, fast-faxing music manager out of Long Island. It was Mr. Marshak who provided the Coasters, along with the Drifters and Platters, for the White Plains concert. Mr. Marshak claims he has the rights to these groups’ names, and he is not shy about protecting them. “They call me Litigating Larry,” he told The Observer , claiming that he has filed more than 250 lawsuits in his time. Sounding like a 33 r.p.m. record playing at 45, he reeled off other claims: that he once testified on behalf of the Beatles, has spoken on musical rights before Congress and was affiliated with “the committee on counterfeiting attached to the F.B.I.”

“All the cases are decided,” Mr. Marshak said of lawsuits involving Mr. Gardner and other originals, like Bill Pinkney of the Drifters and Herb Reed of the Platters. “We never claimed to be original. It’s a concept show. It doesn’t matter who’s in the group as long as the performers are great.”

But Jerry Dunne, Mr. Gardner’s lawyer, scoffed at the notion that Mr. Marshak is in the clear. “The man shouldn’t be allowed to breathe the same air I breathe,” charged Mr. Dunne, who represents Mr. Gardner and JP Productions on contingency. “Larry Marshak is going to see more litigation in the next six months than any other individual in America.” Already, the litigants are hurling nasty accusations at each other-about smashing car windows in parking lots, making physical threats and, not least of all, playing bad music. At one performance in Atlantic City where a “phony” Coasters group was performing, Mr. Gardner said he grew so angry that his wife, Veta, “had to hold me down.” In addition, there have been charges of racism and anti-Semitism; indeed, in conversation with The Observer , Mr. Gardner made pointed reference to Mr. Marshak’s Jewish background.

‘I Was a Prodigy’

The name Carl Gardner may be as obscure to most Americans today as it was when he was born in 1928 in Tyler, Tex., and Mr. Gardner has a palpable hunger for recognition. “I was a prodigy,” he said, describing how he began singing at 5 years old and how, later on, he ran an elevator in town and was fired after singing tunes to a white woman on the job. Mr. Gardner struck out for Hollywood in 1951, leaving behind a wife and child, and joined the group the Robins when its lead singer landed in jail for 10 days. The Robins made a song called “Ten Days in Jail,” and Mr. Gardner’s temporary gig lasted two years.

Mr. Gardner was one of two Robins who formed the Coasters in 1956, when fabled rock-and-roll songwriters Jerry Leiber and Mike Stoller made a deal with Atlantic Records. The group’s first recording was “Down in Mexico,” and its sound became a winning formula, at times comic and raunchy-rhythm-and-blues with mass appeal. In 1958, “Yakety-Yak” hit No. 1 on the U.S. pop charts, followed by hits like “Charlie Brown” and “Poison Ivy.”

Despite the success, Mr. Gardner, who was lead tenor, recalls some hard times. “We had to travel throughout the United States by car or bus promoting the records to live, one-night-stand audiences,” he recalled in an affidavit, “sleeping and eating in those years in segregated environments under tough conditions while giving as many as 300 performances a year.”

In court papers, Mr. Gardner said he has continuously performed with the Coasters since their heyday in the late 50’s, though along the way, the group was eclipsed by the Motown sound and evolved into an Oldies phenomenon. Like other old-time groups, its roster of singers changed over the years as members left or died, spurring confusion over who could perform under whose name. In Mr. Gardner’s case, one of the first lawsuits came about 10 years ago, when a man named Billy Richards, at the suggestion of Mr. Marshak, filed suit claiming rights to the Coasters name in Federal court in California. Mr. Richards had been performing with Bobby Nunn, who was an original Coaster but left the group after a few years. Mr. Gardner said he enlisted his co-defendants, who were in California, to defend the suit, but they failed to show up in court and Mr. Richards won a default judgment in 1990.

Several years ago, Mr. Gardner faced Mr. Richards and Mr. Marshak in court again, this time in Brooklyn. That suit started when WWOR-TV in New Jersey planned to feature Mr. Marshak’s Coasters on an Oldies show. Mrs. Gardner called the station herself and said that the Coasters it was putting on air were fake. As a result, WWOR canceled Mr. Marshak’s group and put on Mr. Gardner’s. A mess of litigation ensued. Mr. Marshak claims he won the rights to the Coaster name, but the Gardners dispute this. They say Mr. Gardner is being shut out by Mr. Marshak’s cheaper competition. (The promoter admits to booking more than one group of Coasters at different venues on the same night.) Mr. Gardner’s income used to be in the six figures, they say, but the knockoff groups have knocked those earnings down to about $40,000 a year, which must cover performing expenses. Mrs. Gardner said she’s so stressed that “if I showed you my doctor bills just for heart checkups, you’d be shocked.”

Litigating Larry And the Free Market

Theirs is not the only mess. Indeed, it is nearly impossible to catalogue all the litigation surrounding the use of the Platters name, which has cropped up in courts in different states involving a host of characters. Herb Reed, the only original Platter still performing, is still in litigation with Mr. Marshak. “Things are slow in America, as you know,” Mr. Reed said of his journey through the courts.

Lawsuits over the Drifters name are just as complicated. Bill Pinkney has an agreement with Mr. Marshak that he can perform only as an “original” Drifter, said John Villano, his booking agent at JP Productions. (Mr. Marshak currently holds the trademark to “the Drifters.”)

Yet Mr. Dunne, Mr. Gardner’s lawyer, claims that Mr. Marshak does not legitimately own rights to the names of the Coasters or Drifters-and even if he does, he said, it’s irrelevant. The suit against CBS, said Mr. Dunne, is for false advertising-for putting out groups as if they were the originals. As evidence, Mr. Dunne points to surveys taken by JP Productions at the Westchester concert, which show that many concertgoers expected “to see the artists who recorded famous oldies.” CBS denies any wrongdoing in helping to promote the Westchester Oldies concert. In a letter to Mr. Dunne before the concert took place, one of its lawyers wrote that “nothing in our promotion of the event suggests that the members of these groups are the original recording artists.”

Mr. Marshak has his own lawsuit pending against Mr. Villano and JP Productions, claiming that the company harasses his customers, who have every right to book his performers. “The public chooses who should be working. That’s what they call the free marketplace,” Mr. Marshak said. “The public doesn’t want to see originals from that era-they’re too old.”

Mr. Marshak faxed The Observer a copy of an affidavit filed by an executive of Billboard Productions, which put on the Westchester concert, accusing Mr. Villano of having his employees show up in the parking lot, making threatening remarks to concertgoers and even smashing their windows. Said Mr. Villano: “If anybody was throwing rocks through windows, it was the fans because they got ripped off.”

Mr. Dunne said he plans to continue fighting for the rights of Mr. Gardner. “He doesn’t mind that people glorify his music,” said Mr. Dunne. “He wants everyone in America singing ‘Yakety-Yak.’ They can have all the Las Vegas shows they want. Just say, ‘Tribute to the Coasters.'”

A born-again Christian, Mr. Gardner said he prays for those he has opposed in court. But he vowed to keep fighting. “I think it’s ignorant to give up my name,” he said. “It is my thing. Why should I give it up?”

Yakety-Yak! Original Coaster Fights Back Against ‘Phonies’