Probate
May 30, 2001
Ungrateful: Garcia Will, Merchandise at Issue
SAN FRANCISCO - As the sixth anniversary of Jerry Garcia's death approaches, and the probate fight drags on among remaining members of the Grateful Dead, his family and friends over rights to the rock icon's guitars and trademarks, all a friend can say is, ain't it a shame.
Garcia's will specified that the five guitars made by his friend, Doug Irwin - including the famed "Wolf," "Tiger" and "Rosebud" guitars recognized by Deadheads worldwide - should go to Irwin. However, Novato-based Grateful Dead Productions claims the corporation, not Garcia, owns the instruments; therefore, they were not his to give away.
Garcia died in a Marin County rehab center in 1995.
In stark contrast with the peace and love spirit of the legendary group, which actually encouraged bootleg concert recordings by fans, the dispute has even splintered the band: Phil Lesh, who says Garcia's will should be respected, is at odds with Bob Weir, Bill Kreutzmann and Mickey Hart.
Irwin has fallen on hard times after being hospitalized for injuries when he was hit by a car while riding his bicycle a few years ago. His family closed his guitar shop while Irwin was hospitalized, and now he has no money to reopen it.
A garrulous, affable man considering he's "beyond broke," Irwin now lives in a small trailer in the Sonoma County town of Cotati. He says Garcia would be unhappy about his bandmates' refusal to honor his will, noting the court fight runs counter to everything the Dead stood for. "He'd be pissed," Irwin declared. "They would never have pulled this stuff with him around. They've tainted their own image."
In an effort to explain the embarrassing dispute to their fans, Weir, Hart and Kreutzmann have posted a letter on their Web site, pointing out that all instruments were communally owned by the band. "We all owned it all. All for one and one for all," they note before offering their interpretation of Garcia's will.
"What Jerry actually said in his will was 'my Irwin guitars,' and we feel that applies only to instruments he never used on-stage, not the celebrated guitars Doug and his attorneys are seeking," the letter says. Calling the disputed guitars "part of the Grateful Dead legacy," the band wants to display them in a planned Terrapin Station museum.
Eric Doney, the Grateful Dead Productions' Mill Valley attorney, said Garcia's will is moot, since the corporation, not Garcia, paid for the guitars.
"You can't will something to someone that you don't own," he said.
Acknowledging it may be a "spiritual issue" to fans repulsed by a "cold, legal argument," Doney asserted that group ownership of the guitars was "always the understanding" among band members. Garcia's bequest, Doney said, was simply an altruistic effort "to take care of Doug." If Irwin gets the guitars, the band fears he will put them up for auction, and they would disappear into a private collection, Doney said.
For his part, Irwin admits he may be forced to sell one of the guitars, which are estimated to be worth millions. Perhaps the most valuable is the "Rosebud," which Garcia played at Chicago's Soldier's Field in 1995, the band's last concert together.
After Garcia bought his first guitar from Irwin for $850 in 1971, he asked Irwin to make him the "ultimate guitar." That was the "Tiger," named for its decorative inlay, which cost about $1,500. The "Rosebud," the last guitar Garcia used, cost $13,000 and is decorated with a skeleton holding a cross in one hand and a rosebud in the other.
Irwin's claim is partially supported by David Hellman, co-executor of Garcia's estate. "The Wolf guitar is included in the estate's inventory so we think it should go to Doug," he said. He added, however, that there is insufficient information to substantiate Irwin's claim to the other four instruments.
Irwin says GDP has offered him the "Wolf" guitar if he dropped his claim to the others. Doney confirmed the offer but said it was just one of many that were discussed.
Irwin said he just wants to get back to guitar-making and has visions of establishing what he calls the "University of Skillful Means" for other guitar builders and struggling musicians.
Doug Long, one of two Visalia attorneys representing Irwin, wants to keep the case in probate court, noting the estate would be responsible for the hefty 55 percent tax bill, instead of on the civil side, where Irwin would have to pay the taxes.
Another side to the probate dispute involves rights to an array of lucrative copyrights and trademarks, including a popular line of men's neckties, ice cream, dolls, sheets and lithographs.
Some of the probate delays are the result of challenges to Garcia's will, including a long, well-chronicled dispute between Garcia's widow and a former wife.
Garcia left most of his $10 million estate to his last wife, Deborah Koons Garcia. The rest is divided among his four daughters from previous relationships; his brother, Clifford Garcia of Fairfax; Sunshine Kesey, daughter of writer Ken Kesey; and Garcia's former wife, Carolyn, also known as "Mountain Girl."
So far, $4 million in cash has been distributed to the beneficiaries, said estate co-executor Hellman.
Since royalties from the extensive catalog of copyrighted products bring in some $1.5 million a year (about $300,000 annually comes from Ben & Jerry's ice cream for the "Cherry Garcia" trademark alone), there's a lot at stake. Total value of the intellectual property rights has been estimated at nearly $5 million, Hellman said.
After years of negotiations broke down, lawyers for Garcia's brother and daughters went to Marin County Superior Court last month, demanding that the estate - including the intellectual property rights and about $3 million in cash - be distributed once and for all.
Noting the probate case is nearly six years old, David Phillips, the San Francisco attorney representing Garcia's daughters and brother, said, "At this point, enough is enough. It's time for control of the intellectual property to be passed to the people who are entitled to it."
But lawyers for Garcia's widow, who is also the estate's co-executor, have tried to block the distribution until a limited liability company can be established to manage the intellectual property rights, which will generate royalties for years to come. The company would oversee Garcia's copyrights and trademarks and then spread the royalties among the beneficiaries.
Until such an entity is set up, Hellman said, it would be "irresponsible" to distribute the IP rights since none of the rights would be exclusive. Without a corporate umbrella, he said, the rights to Garcia's likeness, music and art would be fragmented, resulting in a "who-owes-money-to-whom" scenario.
He said one of the sticking points involves who will manage the corporation and whether certain decisions would require a majority vote by the beneficiaries. So far, both sides have vetoed the other's nominations for manager of the corporation.
Phillips contends Garcia's widow has been holding up the IP issue for her own benefit.
"Deborah wants to delay this because she retains control in the interim," he said. "She's using the delay in closing the estate to have her way."
According to Phillips, Koons Garcia wants to retain veto power over the corporation and rejects the idea of resorting to a mediator if disagreements among the beneficiaries arise.
Koons Garcia's attorney, Max Gutierrez Jr., did not respond to a request for comment.
In an effort to reach an agreement on the IP dispute, the dispute has been sent to Justice Donald King, a family law specialist who is now a mediator with the American Arbitration Association.
Both issues, although unrelated, are scheduled to return to the Marin courts on June 11.
Meanwhile, Irwin says he's waited patiently for guitars Garcia willed to him. "Forget the legalities," he implored. "Just honor Jerry's wishes."
As the two cases - including numerous parties and their accompanying battery of lawyers - grind their way through the courts, the Garcia estate fight just keeps on truckin'.
Donna Domino
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