By Joe Pinchot
Herald Staff Writer
Tony Butala of The Lettermen has asked a federal judge to grant him summary judgment in a lawsuit against a former employee who, Butala alleges, is illegally using his past association with The Lettermen to fuel a solo career.
Mark Preston, who sang with The Lettermen from Sept. 1, 2006, through Aug. 4, 2011, will have an opportunity to answer the motion before the judge decides whether to grant judgment or leave the issues for a jury.
Preston actually put in two stints with Butala singing the ballads that made The Lettermen – then composed of Butala, Jim Pike and Bob Engemann – stars in the ’60s, but the relationship soured and Preston has pursued his own breach of contract claims against Butala in York County Common Pleas Court.
Butala has charged Preston with breach of contract, copyright and trademark infringement and unfair competition, and his motion for summary judgment seeks to have the judge find that Preston is liable for those breaches of law and to issue an injunction stopping him.
Butala has not asked U.S. District Court Judge David Stewart Cercone, Pittsburgh, to decide how much money Preston owes Butala for these breaches, saying such a determination will be “the subject of further proceedings.”
In court documents, Butala said Preston has readily admitted violating the terms of his contract with Butala by referring to his time with The Lettermen in promoting his solo career; wearing sweaters with “L” on them; and using music and videos of himself when he was with The Lettermen in his live shows.
In a court document made public by Butala as part of his motion for summary judgment, Preston admitted wearing a sweater during performances, but said it is not a “Lettermen sweater.”
“The sweater Mr. Preston wears is a common design of a white sweater with a letter ‘L’ on the front,” he said. “The sweater is a common item available at many retail outlets and The Lettermen have no copyright on this design.”
Preston also admitted using video and audio recordings that were recorded when he was with The Lettermen in his live shows, but argued that his contract did not prevent such usage.
Preston has argued that his contract with Butala cannot be enforced because Butala owed him wages and royalties. Butala acknowledged that he owes Preston money, but called the amount “insignificant” when compared to the $468,666 Preston was paid while he sang with The Lettermen.
Butala, represented by local attorney Ronald D. Amrhein, added that case law has established that a contract “should not be rescinded on the basis of inadequate consideration in the absence of fraud or mistake.”
Butala said another previous case that plays into his favor was filed by the Beach Boys against former member Al Jardine - they have since patched up their differences - when Jardine performed shows billed as Beach Boys Family and Friends and Al Jardine of the Beach Boys.
The Beach Boys argued that promoters and fans were unsure as to whether they were booking or seeing the Beach Boys. Butala argued the same scenario is playing out with Preston.
“(Preston’s) actions are very likely to cause confusion with regard to his affiliation with The Lettermen,” Butala said.