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.