Today marks the 10th Anniversary of my little blog. I have had a lot of fun researching and writing these posts over the past decade and I have had some really interesting interactions as a result of the blog. I do feel that I have neglected the blog
recently due to the demands of my practice and life events but I intend to remedy that. I have a bunch of things that I want to write about.
The Nashville Business Journal recently reported that Nashville has seen the greatest cost of living increase in the entire United States citing a study that showed that it takes a salary of $70,150.00 to live "comfortably" in the city. At the same time, Rolling Stonemagazine just reported that the median U.S. musician earns less than $25,000.00 a year.
None of this is news to a struggling musician or songwriter--or anyone who has had to pay for parking recently in downtown Nashville.
It does however drive home so many important points. The people who have been spreading the gospel of the need for affordable housing in Nashville have been saying this for years. How can a city which depends so heavily upon its vibrant music scene continue to attract musicians and songwriters if they can't afford to live here?
More to the point, I think that these statistics say volumes about the devaluation of music in general.
I originally wrote this blog post with an ending that suggested several solutions-but honestly musicians and songwriters will figure it out. Scenes develop where the conditions are right, be that Liverpool, Austin, Texas, Athens, Georgia, Portland, Oregon or Memphis. However, as a city, Nashville will have to decide what it wants to be-long after the tall skinny houses collapse, Music Row becomes one large condo/hotel development and the bridesmaids and pedal taverns leave town.
Like many people I know I have been fixated upon the Trump Russia scandal, devouring the news in a way that I haven't done since I was a teenage paperboy during the Watergate era. I have become fascinated with some of the minutiae of the story. I could spend hours reading up on Michael Cohen and Michael Avenatti and their respective law practices.
But the story that resonates with me this week involves the lawyers for the Democratic National Committee and their problems serving a summons on Jared Kushner in the case Democratic National Committee v. The Russian Federation et al.. While Kushner's lawyers say that he is "easy to find" (apparently since he works at the White House), DNC lawyers have stated in court that they have tried to serve the summons three times at Kushner's New York apartment, that the Secret Service has rebuked their attempts to serve him in Washington (what issues does that raise?) and that their attempts to serve him by certified mail have literally been returned.
I think that this was interesting enough to go back and review the Federal Rules of Civil Procedure and see what they say about service of process of a summons in a lawsuit:
FRCP 4(e) SERVING AN INDIVIDUAL WITHIN A JUDICIAL DISTRICT OF THE UNITED STATES. Unless federal law provides otherwise, an individual—other than a minor, an incompetent person, or a person whose waiver has been filed—may be served in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.
All lawyers have war stories about the occasional difficulties of getting a summons or subpoena served. It is one of the many things they don't tell you about in law school. It's a small but important detail that can derail an entire lawsuit. I have had to come up with ingenious ways to get people served on numerous occasions.
It does seem strange that an individual as high profiled as Jared Kushner would go to such great lengths to avoid getting served with process was surprised that the Judge did not give the DNC some relief if in fact the allegations they made regarding service is true. The Judge denied the motion to allow service of proves by first class mail (at least for now) stating “ Service (of process) is not intended to be a game for the serving party or the party to be served” adding “the Court is confident that the DNC’s counsel can contact Kushner’s counsel; and arrange a mutually convenient mans to effectuate service”. Given what we have seen so far, this will be interesting.
I was recently in Havana, Cuba. A friend pointed out this poster for an upcoming gig by the Baquestri-Bois. I started thinking about all of the trademark implications until I remembered, oh yeah...you're in Cuba.
I wanted to write something about my friend Heinz Geissler,
who passed away in January.I first met
Heinz through Townes and Jeanene Van Zandt and soon began helping him with a
small record company that he and John Kunz ran in Austin, Texas:Watermelon Records.Within a few years I was handling agreements
for an amazing roster of artists ranging from Alejandro Escovedo, Julian
Dawson, the Austin Lounge Lizards and the Asylum Street Spankers, Omar and the Howlers, the Derailers, Bob
Neuwirth, Doug Sahm, the great Don Walser, Steve Young and many, many
more.I also worked on a deal to get
Watermelon to release two of my favorite Webb Wilder album "Town and
Country" and "Acres of Suede". Heinz and John built a great
Working with Watermelon I had an opportunity to learn the inner workings of
independent labels – the good and the bad.I got to work on a multifaceted distribution agreement with a major
label (while in Russia adopting my
daughter). I enjoyed some of the best meals of my life in Austin . I also
learned more than I ever wanted to know about bankruptcy law.
At the end of the day, I just remember how much I enjoyed my
nearly daily phone calls with Heinz.We
would deal with whatever business was going on that day and then invariably
start talking about music – and Heinz was the world's biggest fan – from talking
about the Stones (he loved the Mick Taylor era) Paul Kossoff, Neil Young
bootlegs, Jackson Browne – the guy was an authority.To this day I remember him saying in his
thick German accent "that's really f...ing cool". More than anything,
I will miss his enthusiasm.
"When Maria Callas appeared on stage . . . on Sunday
night, she looked a little pale, a little spectral."That is how Anthony Tommasin (writing in the
New York Times) described witnessing a hologram performance of the diva at
Lincoln Center.The real Callas has been
dead since 1977.It used to be that the
only hologram we had to contend with was Princess Leia seeking help from Obi-Wan Kenobi.There is now a new phenomena
to utilize this technology to create concert performances of deceased stars.To date there have been hologram performances
from Tupac Shakur, Michael Jackson, Ronnie James Dio and now Maria Callas.Mojo reports that a hologram Roy Orbison is
about to tour the United Kingdom and that the Frank Zappa estate is about to
send Frank out on tour with some of his old band members performing live.
I find this
really creepy for the most part.It is
interesting that Tommasin does not completely dismiss the Callas experience
stating "it was amazing yet also absurd, strangely captivating, yet also gimmicky and ridiculous," going on to state that opera fans tend to dwell in the
past thus indicating that this sort of performance might appeal to them more
than other audiences.My worry is that
as our contemporary heroes age and die off will the hologram industry rise to
fill the void.Could Paul McCartney be
preparing a hologram version of himself to send out on tour? - - - Probably.Will the hologram develop artificial
intelligence (wait that's another blog).
All of this
made me begin to wonder about the rights that artists traditionally give up
when signing record contracts.Usually
there is some limited assignment of name, image and likeness rights and the
rights to control video recordings made during the term but could this be
considered to be a grant of rights that would encompass holographic images of
the artist long after the term (and the artist) expires?Obviously the artists who have leverage don't
need to be concerned with these boilerplate clauses necessarily but this is
something that is certainly going to be on my radar going forward.
In my last blog post, I wrote about the sad developments
which led to Donald Everly being in litigation with the Estate of his late
brother Phil Everly.No less depressing
is the recent California lawsuit:Steely Dan, Inc. and Donald Fagen v. the
Estate of Walter Becker.This case
filed in November 2017 is interesting because it shows the complex
interworkings of corporate law, probate law and band dynamics.
All musical groups function as a business entity and music
lawyers are always trying to get their clients to recognize this and take steps
to organize themselves properly, be it as a partnership, corporation or limited
liability company.Apparently the
original members of Steely Dan recognized this back in 1972 when they signed
their first record contract.At that
time they formed a corporation, Steely Dan, Inc. with five shareholders (Fagan,
Becker, James Hodder, Dennis Dias and Jeff Baxter).The individual shareholders also entered into
a Buy/Sell agreement which provided that upon the death or termination of the
corporation's employment of a shareholder, the corporation would be entitled to
purchase that shareholder's shares of stock in the corporation at book value
(as opposed to fair market value)/The
Buy/Sell agreement is a widely used tool in closely-held business corporations
used to maintain control amongst the original shareholders and avoid outsiders
becoming shareholders. It allows the original shareholders the ability to
purchase the interests from the estate of a deceased or terminated shareholder
so that the business can continue without having to necessarily deal with
relatives of former members.The
Buy/Sell agreement is a widely used tool for musical groups because it lays out
a procedure to follow when a band member quits the band.Departures can be contentious and it is
helpful to have a procedure in place to navigate the split.Clearly the Steely Dan Buy/Sell agreement was
fairly successful in that it stayed in place for 45 years and weathered
all of the various personnel changes resulting in Becker and Fagen being the only remaining
original members.But few groups become
as successful as Steely Dan.The graver
issue (but one which will sadly become more commonplace) is that more and more
band members of these iconic bands of the 1960s and 1970s will die – triggering
various corporate mechanisms designed to protect the entities but not
necessarily designed to deal with dead rock stars and their estates.
Daniel Scott, writing
in Forbes pointed out the problems
with using the traditional corporate devices to deal with the unique situations
of musical groups and their "legacy plans".He states:
While this may work for more
traditional businesses, Buy/Sell agreements do not work well in a band
setting.First there is the issue of
value.Ordinarily a Buy/Sell agreement
applies a formula to determine the fair market value of the deceased owner's
interests.The problem is, valuing what
a band is worth is hardly a science and has been the subject of much debate in
recent years, particularly when it comes to the value of rights such as
likeness and image (as opposed to just sound recordings and publishing.)This could result in a significant
undervaluing of the deceased member's interests.
Purely as an equitablematter,it would seem that Becker’s estatewould be entitled to something for the 45 years of work he put into the
band (that is, in addition to record royalties and publishing royalties which
we assume are not part of this agreement. On the otherhand, there was and is a good reason to
create these kind of documents to deal with the mercurial natures of rock and
I doubt that this case will go all the way to trial but I
bet that one major result of the dispute will be to cause those who advise musical
groups, especially those with long track records, to reevaluate their governing