Civil Procedure: You've Been Poked

The Associated Press reported last week that it is now legal, at least in Australia, to serve legal process through Facebook. Imagine the possibilities for litigation in the U.S. Think of how many people don’t seem to have physical addresses or land lines but have active presences on Facebook, My Space and other sites. In my own practice, I have been able to locate a few difficult to find characters through these sites. I don’t know if this development is exciting or troubling but it certainly points to the future of Civil Procedure. Perhaps next we will be suing avatars on Second Life.

The RIAA filesharing lawsuits: a new chapter

I have been meaning to write something about the creative legal assaults on the RIAA filesharing lawsuits. First, I was impressed by the fact that Jammie Thomas’ attorney Brian Todder had convinced the court to overturn the jury verdict in her trial in Minnesota and I was similarly impressed by a Harvard law professor’s constitutional challenge against the RIAA in his defense of Boston University student Joel Tennenbaum. I am not an advocate of illegal downloading, I just think that the file sharing lawsuits are not the right way to address the problems of the record business.

However, I was not prepared for the article in the December 19, 2008 Wall Street Journal which indicated that the RIAA was poised to abandon its legal assault on file sharing. The article did not specifically say whether the decision would affect all existing suits or simply apply to new suits. There is also some potentially troubling news about an alliance between the RIAA and various ISPs that sounds a little like the Patriot Act ver. 2.I can’t help but think that some of these recent developments made the RIAA less confident of their strategy. On the other hand, perhaps they finally realized the stupidity of suing their own customers. This was a bad idea to begin with. As far as I can tell, the lawsuits had no discernible effect on the worst offenders. The music industry needs to find a way to embrace the new generation of music fans and bring them into the fold. I don’t know if anybody has the idea but lots of people have good ideas. I am old enough to remember some of the great marketing Warner Bros. did in the late ‘60s and early ‘70s which made people life long fans of many of its acts. They basically gave away a lot of free music to anyone who would pay for postage. I can’t help but think that this was more effective than suing a bunch of college students and high school kids.

Ain't Love Grand?

For years I have advised musicians in bands that they need partnership agreements with their band mates. Now, they may also need agreements with their girlfriends or boyfriends, as the case may be.

Recently, the Tennessean reported that Jack Lawrence of Nashville’s Raconteurs (you know, Jack White’s other band) has been sued by his former girlfriend, Kelli Craig, who claims that in addition to a ten year romantic relationship, they were in fact engaged in operating a business partnership. According to the Tennessean, which reviewed the pleadings, Craig alleges that under the terms of their oral partnership, “she would support (Lawrence) so that he could pursue his music career and, if and when he began earning money as a musician, they would divide the money as partners.” Apparently, Lawrence bought a house, titled solely in his name in 2007. When the couple broke up, Craig refused to leave the house. Lawrence filed a detainer warrant to force her out of the house and she countered with the partnership lawsuit. (The most terrifying aspect of the Tennessean article was the revelation that Craig apparently has also refused to return Lawrence’s record collection). Craig’s lawsuit has already survived a motion to dismiss, which means that unless a settlement is reached, the case will head to trial.

This case is worth analyzing and is worth taking seriously. Tennessee courts do not routinely hold that all unmarried couples are in fact operating partnerships. In Martin v. Coleman, the Tennessee Supreme Court stated that they would not rule that an unmarried couple could create an implied partnership simply by continued cohabitation (79 S.W.3d 757,761 Tenn. 2000). But Tennessee courts have also applied a partnership analysis to specific situations involving unmarried couples. In Bass v. Bass, the Court applied the classic legal definition of a partnership ( “a partnership is an association of two or more persons to carry on a business for profit”) (814 SW2d 38 Tenn 1991) to a domestic situation. Thus the law seems to be that if a former flame can establish the elements of partnership, he or she might secure an interest in the earnings from the other party’s career. Perhaps more significant to this current dispute is the holding in Montgomery v. May (181 SW 3d 720, Tenn. App 2005) which held that in scrutinizing a real estate purchase the court will look to how the property was purchased (e.g. whether both parties contributed funds) rather than strictly how the property is titled.

As a practical mater, I am not sure how a couple is supposed to address these kinds of issues (kind of a romance killer) and I am sure there are equities on both sides of this ugly dispute. If this case unfolds, it should be watched closely by attorneys, business managers and bass players.

More on "These Kids Today"

My friend writer/producer/visionary R.S. Field (who deserves his own wing in the Rock and Roll Hall of Fame, if for nothing else writing "Miss Missy from Old Hong Kong") alerted me to a book which examines themes similar to what I wrote about in my last post. The book "Born Digital: Understanding the First Generation of Digital Natives" by John Palfrey and Urs Gasser is reviewed here: www.alternet.org/story/109068. The review itself is very insightful. Clearly, to paraphrase, "something is happening and we don't know what it is..." but I think we are just beginning to understand the implications for intellectual property rights in the future.

These Kids Today: An Attitudinal Shift

I have taught copyright law on an undergraduate level for a number of years. Recently, I have begun to notice a major change in my student’s attitudes. For years, while discussing the impact of new technology on copyright law, I have taught the case UMG Recordings, Inc. v. MP3.Com, Inc. (SDNY 2000) as an example of the arrogance of some of the early internet companies in their wholesale infringement of copyrights. In that case, the aptly named defendants blew what appeared to be a brilliant business strategy (they could have beat iTunes to the party) by introducing a new service which on the surface appeared to offer customers a place to store their cds online, but in reality involved the company “ripping” thousands of cds without permission from either the sound recording copyright owner or the music publisher. This seemed to me to be basic copyright infringement; the second circuit agreed.

A more recent case, although larger in both aspiration and scale involved the Google Library project, with its stated intention to scan nearly all existing important books online, irregardless of copyright issues. This case, The Authors Guild et, al. v. Google, Inc. was recently settled. The settlement is probably beneficial for both Google and society as a whole but it would have been fascinating to see how Google’s fair use defense would have played out on such a grand scale.

What is more interesting (and perhaps more frightening) is the reaction of my students to these cases. Whereas five years ago my students had a knee jerk response to the MP3.com case (“string ‘em up”) they now seem to question why the company was even hauled into court. They have the same reaction to the Google case, as if they just assumed both actions would be protected by fair use.

This is an interesting development and is clearly linked to the growth of the internet and its prevalence in our lives. I don’t know why much more anecdotal information is needed to show why sales of physical music product is down but this may have broader implications from everything from libraries to network television. It may also prove the maxim that I have been blindly espousing for years: that the law cannot keep up with technology.

What does Bob Dylan have to do with Copyright Law?

One of the great joys of Dylanology (i.e. the appreciation and study of all things related to Bob Dylan) is the unending mystery of his persona and his lyrics. I am fascinated by the fact that Dylan continuously seems to hide various clues in plain sight. Nowhere was this more apparent than on his 2001 album “Love and Theft”. As the Wall Street Journal reported several years ago, Dylan apparently ‘borrowed’ no less than twelve separate phrases from a book called “Confessions of a Yakuza” by Japanese doctor Junichi Saga. The discovery was made by a Dylan fan who happened to find Dr. Saga’s book at a bookstore in Japan. I couldn’t help but wonder what A.J. Weberman would make of this. What is fascinating from a creative standpoint is that Dylan appears to use the phrases randomly throughout several songs on the album.

This is really not a legal issue; no one would argue that what Dylan did would not be considered “fair use”, it is a transformative use of the highest degree. In fact, the Wall Street Journal reported that Dr. Saga was thrilled to discover Dylan’s interest in his book. There is no telling how much Dylan has referred to other, older sources (both musical and lyrical) in his work. There is a fascinating section in his book “Chronicles Vol. 1” where Dylan writes about researching newspaper accounts of the Civil War at the New York Public . I kept thinking about this about when I listened to the amazing imagery in “Across the Green Mountains” on the new “Tell Tale Signs” album.

There is a great discussion of the concept of ‘allusion’ in the Jonathon Letham’s article “The Ecstasy of Influence” in the February 2007 issue of Harper’s Magazine, which references everyone from Nabokov to Muddy Waters. It’s an important reminder in this day, when people tend to see copyright infringement everywhere, of what Justice Stevens called “separating the fair use sheep from the infringing goats” (in Campbell v. Acuff Rose). Talk about imagery….

God Save the Long Players

I am as guilty as anybody of taking my adopted hometown for granted. I complain about everything form the number of luxury condos blighting the once familiar landscape to the current state of country music. However, every now and then I am reminded why Nashville is such a unique place to live. This usually happens every time I see a Long Players gig. The Long Players are a group of stellar musicians and friends who come together every couple of months to perform a classic album in its entirety. The catch is that they employ a guest vocalist for each individual song and the results are always fun and occasionally thrilling.

The group emerged from a secret cabal of record collectors and vinyl enthusiasts (of which I could say more but they would have to shoot me). Core members of the band include Bill Lloyd, Steve Allen, the always amazing Steve Ebe, John Deaderick and Brad Jones (in the bass player spot formerly occupied by Garry Tallent). Although multi-instrumentalist Jim Hoke is not a permanent member of the band, he might as well be. Guest musicians and vocalists with the band over the years have included Joey Molland, Marshall Crenshaw, Al Kooper, Webb Wilder, Chuck Mead, Hans Rotenberry, Suzy Boggus, Alison Moorer, Ashley Cleveland, Mike Farris, Beth Neilson Chapman, Danny Flowers, Gary Burr, Brendan Benson, Mike Grimes, Dan Baird, Tom Petersson (from Cheap Trick), Adrian Belew, Bobby Keyes, Dez Dickerson, Will Kimbrough, Jimmy Hall, Radney Foster, Matthew Ryan, Kim Richey, Joy Lynn White, Siobhan Kennedy, Maura O’Connell and many more. The group has presented albums from every one from the Beatles to the Clash (with stops along the way for Dylan, the Stones, the Who, Tom Petty, even the Cars). There is a strict aesthetic to the performance which requires the presentation of the entire album and no greatest hits compilations allowed, although generally all of a band's hits are performed during the second set.

What shines through each individual performance is a coming together of people from all segments of the music industry and performers at the top of their game performing for a sheer love of the music that has inspired all of us in some way. The other night I heard the Long Players perform “Abbey Road” and I was really transfixed by hearing this well known familiar music performed raw and live (something the Beatles never got around to doing). It made me feel very positive about life here in Music City.

Doesn't this make you feel all warm and fuzzy

Nancy Quinn, an artist manager here in Nashville  told me today that her brother, who works in the financial industry, always reminds her that "her whole industry is discretionary."

Yoko Ono Wanted to Win Ben Stein's Money

Anyone who knows me knows of my admiration/obsession for John Lennon and the Beatles. I am also a more recent admirer of Yoko Ono (it took a while to get over those scenes from “Let it Be”). I am also a fan of Ben Stein. My wife and I used to be addicted to the show “Win Ben Stein’s Money”. Therefore the recent legal confrontation between Yoko and Ben Stein over the unauthorized use of John Lennon’s “Imagine” in Stein’s movie “Expelled: No Intelligence Allowed” was irresistible.

The gist of the complaint was that Stein and the film production company used a snippet of “Imagine” without permission, thereby infringing both the copyright in the musical composition and the sound recording. What I find amazing about this suit is the fact that filmmakers apparently never sought permission to use the song, thereby implying that they intended to rely on the much misunderstood fair use exception to infringement codified in Section 107 of the Copyright Act. This always seems dangerous to me given the potential for actual and statutory damages under the Copyright Act.

I say that the Fair Use defense is misunderstood because may people believe that it is somehow automatic, like a compulsory license. This is certainly not the case. It requires an analysis of four significant factors and has to be decided on a case by case basis. What I learned about this case is that the filmmakers released the film with the song embodied in it after obtaining a kind of insurance policy from an organization called The Documentary Film Program. This group, which includes Stanford University Law Lecturer Anthony Falzone (who wrote about the case on his blog) provided a pro bono defense for the filmmakers, who were able to defeat Ono’s demand for a temporary injunction. However, the film’s DVD distributor apparently demanded that the offending music be removed from the film prior to the home DVD release. So, interestingly enough, both sides kind of won their battles but lost the war.

All of this is fascinating when one can afford the cost of high stakes litigation like Yoko One and EMI Records or when one can be defended pro bono by really intelligent copyright experts like Professor Falzone, But I don’t think this case gives any guidance to the average artist/film maker as to the real protections afforded by fair use, a topic which is developing on a daily basis.

Let us Now Praise Gretchen Peters

There has been a great deal of press lately concerning artists and songwriters attempting to stop political parties from using their songs without permission, thereby implying an endorsement. There are probably earlier examples but everyone recalls Ronald Reagan’s attempt to use Bruce Springsteen’s “Born in the USA” for his 1984 re-election campaign. He obviously didn’t listen to the lyrics. In the current campaign, Jackson Browne has sued the Republican National Committee for the unauthorized use of his song “Running on Empty”. The legal issues can be a bit murky because of the fact that a public performance license usually covers the right to perform the song (this of course would not apply to the use of the song in a television commercial).

Nashville songwriter Gretchen Peters wrote “Independence Day,” a huge hit for Martina McBride. The song is about a woman fleeing an abusive relationship. Oddly enough, the song often gets played on the fourth of July along with the aforementioned Springsteen song. I am convinced no one ever actually listens to a song’s lyrics anymore. Recently, Peters learned that her song had been used to introduce Sarah Palin to the crowds attending the Republican National Convention. Rather than attempting to sue or even complain, Peters took the outrageously brilliant step of donating her royalties from the song for the duration of the election to Planned Parenthood, in Sarah Palin’s name. Here’s what she said on the issue, “The fact that the McCain/Palin campaign is using a song about an abused woman as a rallying cry for their vice presidential candidate, a woman who would ban abortion even in cases of rape and incest, is beyond irony,” she says. “They are co-opting the song, completely overlooking the context and message and using it to promote a candidate who would set women’s rights back decades. I’ve decided to donate the royalties from ‘Independence Day’ during this election cycle to Planned Parenthood, in Sarah Palin’s name. I hope with the additional income provided by the McCain/Palin campaign, Planned Parenthood will be able to help many more women in need.”

No matter what your politics are, I think this is a novel way for a songwriter to protect their work and get their point across.

Me and Anderson Cooper

Let us Now Praise Joy Ford

You would probably have to live in Nashville to know who Joy Ford is. I got to know Ms. Ford, the owner of Country International Records, when I served as court appointed conservator for a well known songwriter and his wife. Ms. Ford was a close friend of the couple and I don’t think she always approved of my actions on the couple’s behalf.

Country International Records is one of the last of the truly independent labels in Nashville- a place where country music hopefuls can get an audience and maybe the chance to put out a record. These small businesses were once part of the fabric of the music business in Nashville. Ms. Ford does business out of a small one story office building near Nashville’s Music Row. It is this building that has made Joy Ford famous. The building sits on a blighted plot of land near what used to be the gloriously tacky Barbara Mandrell World, adjacent to what used to be the little souvenir shops on Demonbreun, All of these have been replaced by trendy bars and coffee shops. Developers want to turn this large undeveloped tract into some sort of fabulous hotel/retail establishment. There was just one problem: Ms. Ford’s building sort of stood in the way. The developers tried to but the land from her and she refused to sell, even when they offered her an outrageous amount of money. People accused her of being greedy and/or crazy. She said that she just didn’t want to move or see her building torn down. She had too many memories of her late husband associated with the property. Finally, the developers convinced the city of Nashville to institute an eminent domain proceeding against her.

Nothing seems to get people more worked up than the concept of eminent domain, the constitutionally mandated power of the state to take private property for public use. The idea that the city of Nashville had the right to take this woman’s property just because it interfered with a developer’s plans is one of those hot button issues that even liberals and conservatives tend to agree on. One has to think—they knew this woman’s property was there, why not plan around it? And in the end, that’s just what they did. Ms. Ford and her lawyers apparently negotiated a creative deal with the developer that allowed her to stay in her little building and lets County International Records live another day. This is a victory for individual rights as well as one of the last little pieces of Music Row’s history.

You need a will.Period.

About a year ago, I wrote a letter to all of my clients telling them that they needed to have wills, especially if they had children or estates of any consequence. Here’s how the letter read:

To my clients and friends:

I don’t want this letter to sound presumptuous. However, recently, two events made me think seriously about one of the basic legal necessities: the need to have a will. In one case, a friend passed away without a will, leaving chaos and confusion in her passing. Although various people assumed that they knew what her wishes were, no one knew for sure. I am afraid that her intentions may not be carried out.

In another instance, my ten year old daughter began asking what would happen to her if both her parents died. Although I assured her that we had wills, a trust and a guardian in place for her, I also had to tell her that my wife and I spent several uncertain years without wills while we debated the issue of who her guardian would be.

I have been thinking a great deal about these issues and these events just reinforced the need to have a will in place to lay out your specific intentions should something happen to you prematurely. If you don’t have children, it’s still important to make your wishes known. If you do have children it is a necessity to provide for their care and support. Also, since a lot of my clients are songwriters and artists, it is important that you think about the disposition of your intellectual property. You need to be aware of specific provisions of the Copyright Act that might apply to your circumstances.

None of this is meant to sound alarming but I was beginning to think that it was irresponsible not to at least address these concerns with my clients. If you want to consult with me regarding drafting a will, trust or estate plan, please don’t hesitate to call me or e-mail me. Also, if you have a will that is more than five years old it is always a good idea to review it to make sure it is up to date with your current situation. I have learned that the selection of a guardian for minor children often changes as our children grow. It’s also important to have a Durable Power of Attorney for Healthcare and a living will. Let me know if I can be of assistance to you in any of these areas.

A couple of my clients told me that they thought this was good marketing on my part, but it was not meant as a marketing tool; I was (and I am) really serious about this. I have seen too many people not have their wishes carried out because of poor or non-existent estate planning. This is why I have grown more interested in this area. It is absolutely essential.

The Sugarland lawsuit

I neglected to write about this earlier but I was quoted by Law.com, an Atlanta legal newsletter about the partnership lawsuit filed by Kristen Hall against her former partners in the band Sugarland. Here's the link:www.law.com/jsp/article.jsp?id=1202423619769

This case underscores the point that I (and every other entertainment lawyer on the planet) have always made to bands who are about to achieve any level of success: you have to have an agreement in writing with your bandmates. Even with an amicable departure, there will always be room for misunderstanding and misinterpretation. A well drafted partnership agreement can't solve every problem but it will certainly help in the event of a disagreement. Furthermore, a departing member's right to compensation needs to be dealt with as close to the departure date as possible.

Congratulations. The Future is Now

I want to congratulate my client Apex Music Nashville for the successful launch of the new Jason Boland album "Comal County Blue". Last week the record was the #1 country album on iTunes, as well as #2 National Heatseeker on Billboard (#1 Heatseeker in the South Central Region), and 159 on Billboard's Top 200. This is fairly astounding for the second release on a new label. This is a testament not only to Boland's great talent but also to the savvy folks at Apex Music and the mighty Thirty Tigers distribution team. Its also all the proof I need that the major label distribution system is no longer dominant and more importantly, that you don't need a million bucks to get a good record noticed, if you are working with people who know what they are doing. This is very inspiring.

Bands splitting publishing- two views

"there is a thing called publishing, this is what people live off of when the are in a band. EVERY band splits publishing so that everyone in the band is equal. i have lived off $30,000 for 3 years now since we signed that record deal. its hard to play in a band when you dont have a car and another member has a brand new convertible. its hard to go to band practice when you see all the great steaks, cookies, booze, a brand new hd big screen tv, about 100 dvds, new furniture, and all that s..t. there would be days i was starving and i would go to practice at his house and i would see that even the dog was being taken care of."--Bob Ferrari, formerly of the Pink Spiders, quoted on the Nashville Scene's music blog, Nashville Cream.

"A band is a microcosm of society. You hire the the people you want to work with it and you work communally and you split the money evenly". REM's Peter Buck quoted in Mojo, September 2008.

Without editorializing, that pretty much defines the two different views of how musical groups should split publishing income.

Greetings from Nashville

As the song goes, "Greetings from Nashville". Please join me in my nascent attempts to write about things that interest and concern me and I hope interest other people, both in the realm of entertainment law, where I toil daily, but in other areas of the law and culture. I also hope to use this space to help give recognition to friends and clients.