Thursday, January 11, 2018

The Everly Brothers, Cathy's Clown, Copyright and the Price of Love

I revere the Everly Brothers.  As any music fan knows, their unique style of harmony singing forms the basis for modern rock music and their albums are full of fabulous songs.  I was happy when they reunited in the 1980s after their acrimonious split and they made some more great records.  Sadly, Phil Everly passed away 4 years ago on January 3, 2014.  Now the Everly Brothers saga appears to be continuing  in a courtroom which is tragic but fascinating from a copyright standpoint.

 In November 2017, Don Everly filed suit against his late brother's widow and sons, seeking a declaratory judgment as to his sole authorship of the song "Cathy’s Clown".  The facts of the lawsuit are really complicated.

 In March 1960, Don and Phil signed an agreement transferring the copyright to the song "Cathy’s Clown" to their publisher Acuff-Rose.  According to the complaint, Don contacted Phil in 1979  (during their split) and asked him to recognize that he (Don) was the sole author of the song.  Phil apparently agreed to this request because in June 1980 he executed a "Release and Assignment" releasing any interest he had in the musical composition, among others.  Publishing records were changed and for the next 36 years Don Everly was recognized as the sole author of "Cathy’s Clown" (don't feel too bad for Phil, he was the sole author of "When Will I Be Loved".  On March 11, 2011 Don served a notice of termination of assignment of copyright on Sony/ATV seeking to terminate the assignment of copyright to "Cathy’s Clown", which under Sec. 304(c) of the Copyright Act, he is entitled to do as author.  However, Don learned that Phil's widow and one of his sons filed a similar notice of intention to terminate on November 17, 2014 and that on August 11, 2016 served a notice to terminate the 1980 release.

If I understand this correctly, Phil's heirs are now attempting to terminate not only the original 1960 grant as well as the 1980 document wherein Phil Everly  released "his claims as co‑composer".

 Predictably, Don's complaint has been met with an answer and a counterclaim.  Interestingly many of the defenses are equitable in nature – unclean hands, laches, failure of consideration.  As sad as all of this is, there are some really interesting issues being presented here.  For example, if Phil was not an author did he have the right to terminate the assignment to Sony/ATV?  On the other hand nowhere in the 1980 Release and Assignment does Phil admit that he was not the co-author of "Cathy’s Clown".  He simply released "his claim as co‑composer".  Can Phil's current claim withstand a statute of limitations defense?  Did the estate act with unclean hands?


 I can only imagine that if this case does not settle it will delve into some murky issues that need to be addressed under the termination provisions of the Copyright Act. Part of me wishes, though, that this dispute was being argued  by anyone other than the Everly Brothers.    

Thursday, December 28, 2017

Accounts Receivable or The Airing of Grievances

Earlier this year the desktop computer that I had been using for way too long died.  Most of my data was backed up (thankfully) but I soon learned that my billing software was hopelessly out of date and could not be brought back to life.  What this means, besides dragging me into the 21st century, is that it forced me to take a long hard look at my accounts receivable.  In layman's terms, I had to carefully review those former clients who have owed me money for a long, long time.  Some of these debts go back to the turn of the century.  Every  account came with a story and much like the occasion of Festivus, brought about "the airing of grievances".  I carried a lot of animosity towards many of these people who, for whatever reason chose not to pay me.

   A funny thing happened when I was setting up my new billing system, I postponed entering my really old accounts receivable.  I figured that I would get these accounts entered eventually but I was more concerned with getting my current clients set up properly.  What I discovered was that a weight was lifted off my shoulders.  I quit worrying about these debts and these people who will never pay me and more importantly, I quit being angry about it.  I have neither forgiven nor forgotten, but I’m not angry. Hopefully, I've learned some lessons in the 34 years I've been doing this.  This seems like a good metaphor going into this new year.  I know that I can be a better and more efficient lawyer if I can get over being angry or out of sorts about every perceived injustice.  It's good advice for some of my clients too.  You can either spend a lot of money trying to make someone else’s  life miserable because of some injustice or you can try to look ahead and move forward.  I hope I can remind myself of this every day.

  Happy New Year!

Monday, November 27, 2017

Here's Something Else for Musicians and Teachers to Worry About

There are a number of sound  reasons to dislike the new proposed tax bill passed by the House of Representatives recently.  As the commentators have noted, the bill eradicates many of the tax  deductions we have grown to know and love (except for charitable donations, property taxes and mortgage interest).

However, one of the lest comprehensible elements  of this new bill is that it eliminates employee deductions for unreimbursed expenses.  This means that for musicians, who are also considered W‑2 employees, they will no longer be able to deduct the cost of their instruments and gear as well as the cost of union dues, home office expenses, travel expenses and  mileage or uniform expenses.  The kicker here is that none of this applies to independent contractors – 1099 workers who itemize their expenses on Schedule C.  So if you're an independent contractor you're okay, if you're a W‑2 employee, you're screwed.  It is not hard to recognize the irony here.  As anyone who has wrestled with this knows, the IRS has a very specific test to determine whether a person is acting as an independent contractor or an employee and it doesn't take much to classify a musician as an employee for tax purposes.  Of course  many professional musicians and others involved in the entertainment industry find that they have both W‑2 income and independent contractor income.  Will there be a push to classify more of this income on the 1099 side of the ledger?  I think so.

As an aside, having been a part-time educator, being married to a full-time educator and having some experience with our public and private schools, it seems patently evil to deny teachers the right to deduct their job related  supplies and expenses. From  the books and movies my wife buys to enrich her college students' learning,  to one of my daughter's elementary school teachers who I fondly remember bought all of the musical instruments used by his students (because the school district either couldn't or wouldn't pay for them) teachers make a great sacrifice for their jobs.  Congress shouldn't penalize them.


Thanks to the website financeformsucians.com-a great resource.

Monday, November 20, 2017

Orville Almon, Jr.

I wanted to acknowledge the passing of Orville Almon, Jr.  There are very few people I consider to be true mentors in this world but Orville would be at the top of the list.  I learned so much about entertainment law and the business of law from him both as the person  on the other end  of the phone line  and during the 4 years I worked at his law firm,  Zumwalt, Almon & Hayes.  As another lawyer friend remarked, "He taught a lot of us how to dot the i's and cross the t's." That is so true.   I would venture to say that the majority of my "stock" forms came from Orville (and I'm sure I'm not the alone in this).   When I worked with Orville I was impressed by  his discipline.  He came into the office at nearly the same time every day and just cranked.  That's how you get stuff done.

More importantly, Orville was kind.  I noticed this first as a young lawyer.  He was friendly and courteous and never seemed to be pursuing an agenda – other than to get the deal finished.  When we spoke,  we had real conversations. I am sure we were on opposite sides of the political spectrum but since he was a vet, he earned the right to his opinions. 

Unfortunately, I had not spoken to Orville in a while.  I think the last thing we worked on together was a dispute between two equally eccentric clients and I kind of enjoyed picturing Orville's frustration with the inanity of the whole thing.


He was truly one of the greats  and I will miss him.