Merry Christmas

Merry Christmas and Happy New Year

Treatment Bound: Ukulele Rock

I have had the good fortune of knowing and working with Tom Littlefield for over two decades. I have known Jonathan Bright for slightly less time. Both gentlemen are major talents as songwriters, singers and musicians. Littlefield’s late ‘80’s band The Questionaires, would have made it had it not been for record company idiocy.

When I heard that these guys were making a ukulele tribute to The Replacements, I knew it would be good. Musicians like George Harrison, Pete Townsend and Paul McCartney have shown us that ukuleles have more applications than just kitschy Hawaiian music. However, I did not know that the record “Treatment Bound” would be THIS good. The record works musically because of the great singing and instrumentation. It also succeeds on a higher level because Bright and Littlefield successfully deconstruct all these songs by The Replacements that you’ve known for years but never really analyzed. At his core. Paul Westerberg has a gift for unique melody and brilliant feel for lyrics. It was hard to discern some of the lyrics on the original records, and The Replacements’ reputation was more for their shambolic live performances than great musicianship, but so many of their songs have stuck in my brain for so long and Tom and Jonathan demonstrate why – because they are great songs.

Go to CD Baby to get this record now. ” Or, if you live in Nashville, go by Grimey’s.


You will smile right away and thank me later.

Rock and Roll High School

As a parent of a child about to enter high school, I am acutely aware of Nashville’s educational options. Without trying to start a debate, it seems to me that unless a child is (a) extremely bright; and (b) extremely lucky, their quality public school options are limited. Having said that, I have been generally impressed with the school board’s establishment of magnet high schools that are geared towards certain academic skills and interests. For example, the Nashville School of the Arts nurtures young performers and other artistically inclined students. There are also schools that specialize in science and math.

I was dumbfounded to learn of a recent proposal to turn Pearl Cohn High School into a school with an emphasis on “music business.” If I understand correctly, part of the school’s curriculum would be to educate young scholars to enter into the music business. There are already music business curriculums at three local universities: Belmont, MTSU and Trevecca, last time I checked. Also, last time I checked, there really weren’t any jobs in the music business.

There is certainly merit in offering these courses on the college level. Indeed, I have taught music business law and copyright law on the college level for fifteen years. However, I believe the idea of offering this type of instruction to high school students is meaningless. High school kids who are interested in music should either be playing music or obsessed with listening to music, or both. I remember my friend and former law partner, now uber-manager Ken Levitan telling me that when he was a kid he had a subscription to both Billboard and Sports Illustrated. I think an interest in the music business should grow out of curiosity (or obsession) and it should not be a high school’s mission to try to teach it. Respectfully, I think high school is the time to teach kids critical thinking about the world around them, as well as practical things such as how to dissect stuff and how to balance a bank account. Preparing them for four years of college that would prepare them for a job that may not be there when they graduate just seems irresponsible.

So, what is it that You actually do?

I recently heard a story on NPR about primary care physicians and how their patients and the public are unaware of how much work they do behind the scenes (reading test results, returning phone calls, calling in prescriptions and dealing with the health care bureaucracy). It made me think of the fact that most people are unaware of what lawyers do behind the scenes. I remember the idyllic view of what a law practice must be like I had while I was in law school. I thought lawyers sat around on the phone all day long, being smart and getting paid.

Basically, for starters, what we do is read. We read contracts, motions, cases, statutes and e-mails. There is also a lot of proofreading and editing the endless trail of paper we seem to generate. A lot of work goes into worrying and trying to get the best results for our clients. There’s also a lot of waiting involved. Waiting to hear from clients. Waiting to hear from opposing counsel. And judges. And clerks. And, of course, waiting to get paid. When you can organize your time well and the stars align, this sometimes works rather seamlessly. When it does not work, though, the whole system can collapse in failure.

None of this is meant to sound like a complaint. Hearing that story about primary health care physicians made me appreciate my own doctor more (especially when he gives me his cell number). It also makes me realize that as lawyers, we can try to do a better job of explaining to clients what we actually do for them, and how the process actually unfolds.

Legal Fees

I have written before about legal fees, and last month I read an article Rob Johnson wrote for the November 15th issue of the Wall Street Journal:

Legal Advice…On A Budget

He reports that many law firms now offer legal advice to start-up businesses at either a discounted or flat fee. This is not a news flash. Here is a little secret: most attorneys I know are happy to offer services to start-up businesses for a flat fee or a reduced rate. It only makes sense to help bring certainty for the new small business. I offer this for routine services, such as drafting wills, forming a corporation or limited liability company or applying for a trademark. I, like most attorneys, strive to develop long-term relationships with clients. In fact, the only areas of legal practice that are incapable of being handled with set fees are litigation and sometimes contract negotiation, and these areas can be handled with a negotiated cap on fees. I have also read some intriguing articles about charging fees in litigation on a “per item” basis. Whether you are working with me or another attorney, always feel free to inquire about flat fees or at least good faith estimates of what your legal services may cost.

Protection Against Copyright Trolls

This comes from the Learn Something New Every Day Department. I was surfing the internet reading other attorney’s blogs and came across an article by David Kravets on wired.com:

The $105 fix that Could Protect You from Copyright Troll Lawsuits

I have known about patent trolls for years; they are people who exploit small similarities in inventions, or technical violations of the patent law for profit through litigation. Tbey serve no useful purpose to society. I never heard anything about copyright trolls. Apparently, there is a new cottage industry in acquiring copyrighted material, registering it, then suing websites that have reposted it. I am not talking about sites that promote or engage in copyright infringement, but rather sites that include user comments and interactions (such as blogs).

All of these sites are protected by the Digital Millennium Copyright Act, which, through its “takedown agent” provision, allows a safe harbor for those who repost user generated content (such as Facebook, YouTube, etc.). What I did not realize until I read this article, is that in order to qualify for this safe harbor protection, the site has to register its takedown agent with the Copyright Office. The fee for the service is $105.

As the article points out, the traditional defenses in copyright infringement, such as fair use, remain viable, but the appointment of the takedown agent is a virtual bar to a suit proceeding in the first place.

So, if you are running any kind of blog or website that accepts third party content, or if you intend to quote liberally from third parties on your blog, I suggest you investigate the registration provisions of the DMCA. It could be the best $105 you ever spent.

Let Us Now Praise "Mountain Jack"

I also wanted to throw in a plug for my friends and clients Brad Jones and Hans Rotenberry, both well known in their own fields. They have released their first 'duo' record together. "Mountain Jack" is available on cd and via download through our friends at New Boss Sounds.

Let Us Now Praise John Lomax, III

I wanted to extend congratulations to my friend and client John Lomax III, the newest recipient of the Country Music Association’s Jo Walker-Meador International Award. I have always thought that John was a Renaissance man of sorts, having worked as a journalist and author, manager (Steve Earle, Townes Van Zandt, Kasey Chambers, and The Cactus Brothers), A+R man and music publisher. However, John received this award because of his work with his company Roots Music Exporters, which sells all types of music overseas.

Essentially John found an old school niche in the increasingly digital age- sending American music to Europe, Australia and Japan, to buyers who want to own the real thing, not an MP3. He’s found a way to export music that the labels have failed to distribute overseas, for whatever reason. I love John’s entrepreneurial spirit and as the grown up version of the kid who used to buy mail order records from all over the world, I admire that John is keeping this tradition alive. Also, his sales charts and want lists are always illuminating in showing international tastes (hint, they don’t always align with the Billboard chart).

I love to see small businesses succeed and get recognized, especially when they are this cool. Congratulations, John.

Who Is Harry Fox and Why Do I Have to Pay Him?

Every now and then I get asked the question “Who is Harry Fox and why do I have to pay him if I want to put out an album?”

That’s a good question. The Harry Fox Agency is a wholly owned subsidiary of the National Music Publisher’s Association, responsible for issuing mechanical licenses and collecting mechanical royalties for over 10,000 music publishers in the United States. Many publishers appreciate using the organization because they also regularly audit major labels on behalf of their members. In other words, if you want a mechanical license, which you must have in order to record someone else’s song, you generally have to go through the Harry Fox Agency.

While applying for a mechanical license and complying with the quarterly accountings used to be a cumbersome process, a few years ago Harry Fox created an internet-based service called “Song File,” which allows a potential licensee to “purchase” a license for a certain number of discs and/or downloads online in a one-stop process.

All of this is interesting but it still does not answer the question “Who is (or was) Harry Fox?” I have not been able to ascertain much information on him except that he was an employee of the National Music Publishers Association, who, in 1938, was charged with the responsibility of issuing licenses and collecting mechanical royalties. Apparently Mr. Fox passed away in 1969 and the agency was re-named in his honor. (Poe, A Songwriter’s Guide to Music Publishing, Revised Edition, 1997). However, he is not to be confused with the vaudeville entertainer of the same name who is credited with inventing the Fox Trot.

Unreleased Albums and Re-recording Restrictions

I do not know much about John Esposito, except that he is the current head of Warner Bros. Nashville. I also do not know much about Shawn Camp. I negotiated a contract with him once, but I don’t think I ever spoke with him. I know that he is a talented musician and successful songwriter. I also remember he had a short-lived deal with Warner Bros. back in the early nineties.

This is where it gets interesting. Apparently, Esposito recently heard Camp perform at a music industry function, was impressed by him and learned after the fact that 16 years ago, Camp recorded an album for Warners which was never released. In a move which I think is almost unprecedented, Esposito had the album (now titled “1994”) released.

I think it would amaze people not involved in the record business to learn how many albums go unreleased. I am not sure if Warners is any worse than any other major label, but I do have several friends and clients who recorded for Warners over the past two decades and their records have yet to see the light of day. This was due to a variety of reasons of factors, some of which make sense, some didn’t. (As Tom Petty sang “their A&R Man said ‘I don’t hear a single,’ the future was wide open.”) These situations are usually heart-breaking for the artists because not only is their record shelved and their relationship with their label severed, they typically don’t get a right to to acquire their unreleased masters, AND to add insult to injury, they are often prohibited from re-recording the unreleased songs due to the “re-recording restrictions” in their contracts.

I have never understood the equity of enforcing a re-record restriction in this type of situation. In many cases, if it’s a new artist, these most likely are his or her best songs, created over a long period of time. How does a re-recording restriction benefit the label in this situation? Conversely, how would the label be hurt if the artist re-recorded a song which was ultimately rejected by the label?

That is why it’s so refreshing to here about Warners’ move. I have also had recent dealings with labels who were willing to make long out-of-print albums available online. Making these recordings available digitally benefits both the labels and the artists and is a creative inexpensive way to battle internet piracy. Here’s hoping Mr. Esposito finds some more treasures in his vault.

Thoughts on Soundgarden's Platinum album

About a year ago, I posted something here reacting in mock horror when the band Pearl Jam decided to release their new album on multiple formats, including the video game Rock Band. Now comes the news, reported in the Wall Street Journal, that Soundgarden have earned a platinum album for sales of their comeback retrospective LP Telephantasm, by bundling it with the newest release of the videogame Guitar Hero “Warriors In Rock.” According to the article, this album, which is Soundgarden’s first release in 13 years, was also the first album to go Platinum INSTANTLY, because none of the discs could be returned.

This appears to be a four-way win: for the band, Activision (manufacturer of Guitar Hero), Universal, and the RIAA. Is it a bold new marketing strategy, or is it a last ditch cash grab by a once revered, once relevant band who have not put out a record in 13 years? Does it destroy the legitimacy of gold and platinum status? Does any of this matter? I honestly do not know and am completely on the fence about all this. But I bet it would be fun to put the deal together.

Copyright Fatigue

I wish that I could say that I read last Sunday’s article in the Tennessean about Mitch Bainwol’s speech at the recent Nashville Digital Music Summit, with interest; but that would be a bit of a lie. Bainwol, the current chairman of the RIAA, was detailing the organization’s newest strategies against online music piracy, all of which seem like more and more sophisticated ‘whack a mole’ games. The same article spoke of the industry’s ever oppressive 360 deals, which seem to alienate artists in the same way that the heavy handed attitude towards piracy has alienated fans.

I don’t want to be misunderstood. I am a complete believer in intellectual property rights and as a copyright lawyer, I will diligently enforce my client’s rights against infringement. However, I am becoming more and more convinced that the way to combat piracy in the digital world is through education and making an attractive, accessible product that people actually want to buy and own. We are in the midst of a great cultural shift and nowhere is it more apparent than in consumer’s relationship to music. All of us geezers lament the demise of the traditional retail record store. Not only did these businesses keep us current on new releases and new artists but they also had a social component to them. As so many people have commented, this social component has now moved almost exclusively online. This is not just affecting the retail component.

In his influential email post, Bob Lefsetz recently reported the following facts:

Time spent listening to radio by 12-24 year olds has dropped from 2 hours and 43 minutes in 2000 to 1 hour and 24 minutes today.

Time spent surfing the Web has jumped from 59 minutes a day to 2 hours and 52 minutes.

Another blogger whom I read religiously, James Marshall (whose site is called “The Hound Blog”) recently wrote that though we miss record stores and newsstands, there is some compensation in the fact that we can dial up almost any obscure music and film footage on You Tube. This also should convince people that the consumers have migrated online and that they are going to access music online. The history of technology has shown us that if the music industry keeps trying to erect barricades online, the young technocrats will simply find ways to remove them, legally or illegally.

I think the answer is coming, somewhere in the near future. The outline is emerging. In the short term the battles will continue to be fought but I believe that the only way to really stop piracy is to educate the audience-show them how songwriters and artists actually struggle to make a living, teach them that this is a penny business and that their pennies make a difference. That’s got to be better than the current Big Brother approach.

Random Thoughts about Estate Planning

I read a great quote about estate planning on Matt Homann’s site The (Non)Billable Hour. He quoted Sue DeRoss who stated:

“Everyone gets organized at some point. They just might not be around for it.”

I think a lot about estate planning and especially how to convince people with property and children of the need to have a will. You cannot imagine how difficult it is to get people to focus on this important area. (As an aside, you also would not believe the number of people who start wills and never finish them. I have one file in my office which is over twenty years old.)

The other problem we, as lawyers, are now facing is people who decide to use online “will kit” providers and convincing then that these are not always the best choice.

Now we have a small amount of vindication from The New York Times. Times financial writer Ron Lieber did a survey of the three leading online will providers: Legal Zoom, Legal Writer, and Buildawill. He entered his information in each program, printed all three resulting documents and then took the documents to leading estate planners in New York for a thorough (although admittedly biased) review. Lieber discovered that while each of the documents was generally well-prepared, none of the online services could address the important kinds of questions people really want to ask their attorneys when they are doing estate planning: most often about kids and divorces. Nor could the kits offer any alternatives. Most of all, he found that the online kits do not do a good job of explaining the formalities which need to be observed with the proper execution of a will. The other thing that was remarkable to me was the cost of the online service was not that much less than hiring a lawyer to do the work and to create an individualized document. Most attorneys I know do these services on a flat fee basis, so for a simple will you might be talking about the difference of around $100.

This is not a general diatribe against the online forms business. I just believe that in two (2) important areas especially, wills and divorces (more on that later), it is very important to consult with an attorney to answer questions and prepare the documents.

Thank You, Thank You Very Much

I spent the afternoon in a fairly useless pursuit of some arcane information about a Tennessee statute. However, as is often the case when doing research on the Internet, I stumbled upon a fascinating website:

www.preslaw.net.

This website consists of a collection of all the decided cases involving the King. This stuff makes for fascinating reading. When I was in law school, I did a long research project on the right of publicity, which essentially did not exist in Tennessee until Elvis died in 1977. Now, reading this website, I realize that Elvis' litigious afterlife has the makings of a law school class, if not an entire curriculum.

God Save WRVU

Typically in this, my little window to the world, I have been writing about legal and economic issues concerning the music and intellectual property industry. Today I want to narrow my focus on a radio station: Vanderbilt’s WRVU.

VSC (Vanderbilt Student Communications, Inc.), the governing body of Vanderbilt University’s student media, recently announced that it is considering moving the venerable radio station to an internet address and selling its broadcast band. The presumptive rationale is that data shows that a large number of college students only listen to radio on the internet.

I am not sure if the student population is relevant here. When I was an undergraduate at Vanderbilt, we routinely ignored the programming on WRVU, although the station did produce local luminary Fred Buc of Lightning 100 fame during that time. It was only after I graduated from Vanderbilt that I discovered the great service that the station offered the Nashville community. Over the past quarter of a century, I have enjoyed the station’s programming, from blues to bluegrass (“George the Bluegrass show”), from jazz to funk (thanks, Doyle), from honky-tonk (thanks, Heather) to politics (thanks Mary and Freddie), from Ken Berryhill (the world’s oldest country DJ) to 91 Jumps, the Friday morning R&B show (a staple of my listening diet).

I cannot begin to tell you how much new music I have been exposed to on 91 Rock. I first heard some of my oldest friends and clients on WRVU. Nashville first rock scene in the 1980’s would not have happened without WRVU. I was reminded the other day that a bunch of us young (at the time) local music biz types were instrumental in helping WRVU with benefit albums and concerts back in the day. I still discover great new and old music, local and otherwise, on the station.

The idea of listening to radio on the internet reminds me of ham radio enthusiasts using their hobby to dial in strange and wondrous lands. The data be damned. This data ignores most of us adults who, for better or worse, do most of our serious listening in the car while commuting and running errands throughout our day. To ignore such an important facet of the Nashville community seems to be an abdication of the station’s not-for-profit charter, and foolish for a university that already has a difficult time relating to the city at large. We always took WRVU for granted, but it may have been the university’s best ambassador to the Nashville community at large.

For what it’s worth, we should all take a minute to urge Vanderbilt Student Communications, Inc. to reconsider this intemperate move. The University is still soliciting public commentary at the bottom of the page of this link:

http://www.vandymedia.org/wrvu/

Copyright Office Gives Some Guidance to Documentary Film Makers and Professors

The Copyright Office has finally issued regulations on what activities can be properly classified as Fair Use when it comes to using audio visual work. Specifically, the Copyright Office states as follows:

(1) Motion pictures on DVDs that are lawfully made and acquired and that are protected by the Content Scrambling System when circumvention is accomplished solely in order to accomplish the incorporation of short portions of motion pictures into new works for the purpose of criticism or comment, and where the person engaging in circumvention believes and has reasonable grounds for believing that circumvention is necessary to fulfill the purpose of the use in the following instances:

(i) Educational uses by college and university professors and by college and university film and media studies students;
(ii) Documentary filmmaking;
(iii) Noncommercial videos.

Basically, what this means is that college professors (but not high school teachers?), documentary filmmakers, and makers of non-commercial videos can use certain software programs (such as Mac The Ripper and Handbrake) to copy portions of copyrighted motion pictures and other works in the same way that copies of works in other formats (VHS, for example) may be used for scholarship and criticism. This basically expands the existing law to include new areas of technology. What is more interesting about the new regulations is that they include documentary filmmaking and non-commercial videos. For years, I have been uneasy advising documentary filmmakers as to their rights due to the uncertainty in this area of law. Also, the other exception, “non-commercial video” would presumably cover “mash-ups” and other works that young filmmakers create. This seems like another example of the law playing catch-up with technology, and it is a most welcome advance.

Book Publishing in the Digital Age

As someone who advises authors from time to time and grew up in the retail book business, I was happy to have the opportunity to attend a panel called The New Age of Book Publishing: A Digital Revolution” at the Americana Music Association convention yesterday. The panelists, including attorney Randy Smith and my friend renaissance man Tommy Womack, were uniformly informed and excellent. I confirmed my hunch that the book publishing world is like the music world was about six or seven years ago and if anything the atmosphere is even more like the wild, wild west than the music business.

We know that brick and mortar stores are probably going away; we know that sales of traditional media (i.e. BOOKS) are diminishing while sales of electronic media and their delivery devices are increasing. I learned that there is a huge debate over the aesthetic and quality elements of books on demand and that, not surprisingly, most authors still want to be published in nice hard bound books.

The most interesting question for the future is whether a writer wants to go the self published route, which is as open today as the DIY route in the music business, or whether they want to go the traditional route of finding an agent, who can hopefully place the book with a reputable publishing house. I suspect that this is still the goal of most authors even in the face of evidence that it may not matter economically in terms of overall sales potential. It still comes down to what type of book you are writing, what your potential market is for that book and what your platform is for accessing that market.
Strange days indeed.

The Myth of The Poor Man's Copyright

For the past 15 years, I have taught copyright law at a local college. Every year, without fail, I wind up in an argument with a student over the legitimacy of a so-called “Poor Man’s Copyright.” Folks, the Poor Man’s Copyright does not exist.

However, the myth is so pervasive that many of my students have told me that they were been advised by other professors of the important merits of this method.

Basically, the strategy is this: you take whatever work you have created that you want to protect (song, novel, epic poem, etc.) and mail it to yourself (sometimes the myth suggests certified or registered mail but I am not sure of the distinction for this purpose). The belief is that this somehow proves you created the work. In actuality, this proves that you mailed yourself a package.

The problem lies in a fundamental misunderstanding of copyright law. Our law provides that one’s copyright exists in an expressive work as soon as it is “fixed in a medium of tangible expression” (i.e., this is what creates the actual “copyright.”) The second step is registration of the copyright. Registration is not required to sustain a copyright. It is advisable, though, for purposes of proof AND it is a prerequisite to any sort of copyright infringement litigation. For those purposes, there are no short-cuts or alternatives to copyright registration; one must follow the procedures laid out in the Copyright Act.

I am not sure what the historical background of the Poor Man’s Copyright is. A quick Google search reveals that it is a system recommended to this day in several European countries where there is no central copyright registration authority. It also may date back to the days before the Copyright Act of 1976, when there were legal concepts like “common law copyrights” and other anomalies.

I suppose there is nothing wrong with mailing yourself a package, but please do not rely on that action as any sort of substitute for proper registration.

Americana Music Association Conference

To my friends in the Nashville area, or anyone who might be attending the Americana Music Association Conference this week, I am on a panel tomorrow (Thursday September 9) at 9:00 a.m. with my friends Webb Wilder, David Wykoff and John Allen. The topic is "Protecting Your Intellectual Property in the World of Indie Labels and Publishers." Speaking for all of us, I know we have some terrifying stories. Come by if you can. There are a number of interesting panels starting today and, of course, lots of great music between now and Saturday.

Straight Outta Cashville: the Young Buck Saga

As my teenage daughter will be the first to tell you, I do not know enough about the rap genre. My appreciation crested at NWA and Grandmaster Flash. However, I have always been intrigued by the business side or rap and hip-hop, with its Byzantine system of allegiances, turf wars, conspiracy theories, and (on a more mundane level) some unusually structured record deals.

I have been following the recent stories about Nashville’s best-known rapper, Young Buck (David Darnell Brown). His story is well-known; he dropped out of high school to sign with Cash Money Records and ultimately signed with mega-rapper 50 Cent’s G-Unit Records. Young Buck was featured on 50-Cent’s very successful debut album Get Rich or Die Tryin’ and had his own releases, Straight Outta Cashville in 2004 and Buck The World in 2007. However, at some point he apparently had some sort of falling out with 50 Cent, which led to a hiatus in his recording career. All of this is detailed in a recent article in the Nashville Scene. Shortly after the article was published, Brown’s home was raided by IRS agents seizing assets because of his failure to pay taxes. All this lead to his filing bankruptcy in August. The bankruptcy itself is instructive. Mr. Brown, at 29 years old, owes over $212,000 in back taxes, two mortgages totaling around $685,000, and miscellaneous other debts. I really don’t know how successful Young Buck was in his big earning years, but this is some serious debt. He listed assets of $5,095,293. However, upon examination, $5,000,000 of this figure was apparently the expected recovery from a lawsuit he has recently filed against his former business associates, including 50 Cent. I do not know all of the intricacies of bankruptcy law, but I know this will not count as a tangible asset until he receives a judgment against the defendants. I do know that bankruptcy law allows a debtor to reject executory contracts and Mr. Brown will presumably use this to get out of his uncomfortable alliance with G-Unit. What also came to my attention was Brown’s intention to pay his creditors $12,500 per month from his “employer” Cashville Records. I could not find much information about Cashville Records, but from press reports, it sounds like it is Brown’s own label. I don’t know how his distribution works or what kind of money his label Cashville is netting on a monthly basis, but I do hope he is indeed able to pay his creditors $12,500 per month and have a successful Chapter 13 bankruptcy. A lot of Chapter 13 bankruptcies fail and are converted the Chapter 7 bankruptcies. The real moral to this story can be found in Mr. Brown’s recent statement to MTV News:

“I have a new team in place, but I am also paying full attention now," he added. "Nothing like this will ever happen again. This is a huge wake-up call for all entertainers to stay on top of your own trusted employees and team members, and replace anyone that was put in place by your record label if the situation you have goes sour. This IRS situation came about because I trusted accountants, lawyers and managers to handle my business for me while I focused on making music. From now on, I am going to stay on top of my own business.”

This is a true and important message for artists, no matter what genre or where they are on the income strata: pay attention.

..In which I Try to Stop Complaining and Appreciate What I Have

Every now and then (more often than I care to admit), when I find myself in a whining mode, annoyed at a case, opposing counsel, slow or non-paying clients, creditors, I try to remember the story I read earlier this summer (July 17 in the Tennessean) about Kristen D’Antonio, a young 20 year old woman who is gradually losing her hearing. Her mission is to hear all the music she loves, from The Who to Anoushka Shankar, before she goes deaf, so that she can remember it.

I remember that we used to play a stupid pseudo-philosophical game: would you rather go deaf or blind? This woman answers that question with "I'd rather lose my eyesight than my hearing. When you hear things, it creates images in your mind — you can still 'see.' "

What especially struck me about Kristen’s story is her good cheer and positive attitude in the face of all this, and a number of other health issues. I want to remember her story and listen to music, and perhaps everything else, a little more carefully.

Dazed and Confused, 41 Years Later

This is one of the great mysteries of all time to music nerds and copyright lawyers (I am guilty of being both) – why did Jake Holmes wait so long (41 years!) to sue Jimmy Page for copyright infringement? Specifically, on June 28 of this year, Holmes sued James Patrick Page, Super Hype Publishing, Inc., Atlantic Records, and others for copyright infringement claiming that Led Zeppelin’s song “Dazed and Confused” infringed upon Holmes’ song of the same title. Of course it did. It is the same song. Jake Holmes’ song is on i-Tunes if you want to hear the evidence.

By now, most music fans have heard the story of how Jake Holmes’ band opened for the Yardbirds (Page’s former band) at a 1967 New York show. Impressed by the artist’s performance, Jimmy Page and Jim McCarty purchased a copy of Jake Holmes’ record The Above Ground Sound of Jake Holmes the next day. They soon worked the song “Dazed and Confused” into their act. Page debuted his famous violin bowed guitar during the middle of the song. In fact, The Yardbirds recorded a live version of the song as “I’m Confused.”

Why did Holmes wait this long to take action? Willie Dixon was on the case early, suing for “Whole Lotta Love” infringing “You Need Love.” See this link” for a list of Jimmy Page’s “influences.” By waiting 41 years to file suit, Holmes is barred by the statute of limitations from collecting damages for the first 38 years of the song’s existence. I am sure that one of Page’s defenses will be laches – the allegation that the plaintiff “slept on” his rights.

Perhaps an answer could be found in a quote I came across in an old issue of Shindig! Magazine. Holmes is quoted as saying that he became aware of the song:

“as soon as it came out, and stupidly, I never followed up on it. In the early 1980’s, I did write them a letter, and I said basically: I understand it’s a collaborative effort, but I think you should give me some credit at least and some remuneration, but they never contacted me.” ( I wonder if Page’s attorneys will sieze upon the phrase “ collaborative effort”. I would).

If this case does not settle, it will be interesting to see how it plays out.

A Passage to India

I remain troubled and intrigued by a New York Times article by Heather Timmons published August 4th: “Outsourcing to India Draws Western Lawyers”. The article discusses the inevitable outsourcing of legal work from the United States and other Western countries to India. Essentially, Indian companies, under the direction of Western lawyers, can perform many legal services at a cost as low as 10% of what American firms would charge.


Of course, all of this was predicted by Thomas Friedman in The World Is Flat”, but it is still disturbing, given the well-publicized inability many newly minted lawyers have had in finding gainful employment.

What was even more interesting than the article were the many varied responses in the comments section, mostly from people wringing their hands. One person wrote that going to law school was “foolish” and that employment afterwards was “a lie perpetrated by law school deans.” Another wrote that outsourcing was the “extermination of the middle class.” However, my favorite response was from “SGB” in Vancouver, as follows:

Message to lawyers, handwringers, and students considering their future prospects: the market for more affordable legal services is VAST.

Here's a great question for lawyers: "Could you afford yourself?"

Most lawyers--who are among the most highly paid employees in the world--will admit they cannot. Which means that legal services are too expensive by a substantial margin for all but the top 4 or 5% income earners in the US. The only way for others to access legal services is to give up a big part of their net worth or arrange contingency fees. Which means that probably 90% of individuals and small businesses will walk away from their legal problems rather than engage a lawyer to help solve them.

The comment goes on to say that outsourcing will bring down the total cost of legal services, making them more affordable and will present a unique opportunity to both consumers and attorneys. I wrote about this a few weeks ago in the context of pro bono work (i.e. the cost of legal services vs the demand for legal services and the need for legal services)”. This is a very daunting time to be a practicing lawyer, but as some people seem to recognize, it may be a time of great opportunity. It is a very interesting question. Also, if I were younger and keen for adventure, I might be on the next plane to India. I like the food and Ravi Shankar.

Elie Wiesel, the First Amendment and the Sad Truth

The Wall Street Journal ran an interesting story last week by its drama critic Terry Treachout about a theater company in Washington which backed out of producing a play called "Imagining Madoff" because it had received threats of litigation from famed author and Holocaust survivor Elie Weisel.

Apparently, Weisel and his foundation were victims of Madoff's fraud and the playwright, Deb Margolin became interested in trying to imagine conversations between the two. Weisel took offense at his fictional portrayal. According to the article, he found it "defamatory" and "obscene" and in words which could have only been written by a playwright or a lawyer threatened to sue, if the play was performed "any time in any venue".

The article goes on to examine the First Amendment and the current state of libel law but then hits upon the sad stark reality that in this country, all one has to do is threaten to sue someone else to curtail their right to free expression. Mr. Weisel is a public figure and the playwright and theater company were most likely in their rights in producing the work, embarrassing as it might have been to Mr. Weisel. However, as Treachout writes, "when a world famous plaintiff decides to stare down a not so rich defendant who can't afford to fight back, the defendant usually blinks." I don't do a lot of work in libel law but I do find myself advising clients in the trademark area and quite often, when evaluating a mark that might draw negative attention from a rich corporate defendant, we end up evaluating the financial might of the potential plaintiff much more than the legal merits of the defendant's case or the relative strength of his mark. This is a sad unfortunate fact of advising clients in the 21st century; they might be able to win the case but they can’t afford to fight the case.

The Fab Four v. The Fab 4

Anyone who knows of my interest in all things Beatles related will know that I was fascinated to learn of the recent law suit filed in Nevada federal court, The Fab Four Corp. v. The Fab 4, LLC. I almost predicted a lawsuit along these lines in my recent blog post about the Marty Robbins Tribute Show lawsuit.

In this case, The Fab Four, a Beatles tribute band based in Nevada, have sued the Fab 4, a Beatles tribute band in Colorado, alleging trademark infringement, claiming among other things, that “the Fab 4” is an imitation of “the Fab Four,” and false designation of origin under the Lanham Act. Interestingly, the Plaintiffs have a registered trademark for “The Fab Four The Ultimate Tribute” which was registered in January of this year, but only an application for the Fab Four mark individually.

There are two interesting aspects of this case. The first is the strength of the Plaintiff’s mark. They claim that their mark “the Fab Four” is descriptive of their services. But clearly, both bands’ entire reason for existing is to imitate the original real fabs. I wonder if that will have any impact on the case, it certainly should be considered by the defense.

The other interesting and troubling aspect of the case is that the Plaintiffs sued the Defendants in federal court in Nevada, the Plaintiffs’ home turf, apparently asserting jurisdiction because the Defendants’ website is accessible in Nevada. I have written about the worrisome development of the assertion of personal jurisdiction purely as a result of internet presence several times before, and it is a disturbing trend.

P.S. For my money, “1964, The Tribute” is the best Beatles tribute band and musically, my friends Steve Allen’s “Mystery Trip,” and Dennis Scott’s “The WannaBeatles,” both replicate the Beatles’ sound (but not their wardrob) and can’t be topped

Niches: Let us Now Praise Kimberly Dawn

Although I consider myself a generalist, I have always been fascinated by niches: niche specialties of law practice, niche collectors, niche book publishing, and, of course, niche areas of the music business. One often reads or hears about niche areas of the music business that are thriving despite the economic downturn. Therefore, I was fascinated to learn about Murfreesboro’s Kimberly Dawn label, a label that specializes in releases of hand-packaged 3-inch CD-R’s, essentially EPs. The Nashville Scene wrote about the label and its specialty “moody atmospheric music.” This is a genre about which I know only a little (despite my admiration of Brian Eno), but I respect the fact that the label has built a network of collectors and musicians interested in its music. I am even more fascinated that the label elected to use the medium of the 3-inch CD, something that I thought died an ignoble death in the Eighties. The fact that only a few CD players can even play the things apparently ADDS to the attractiveness of the objects (kind of like when Cheap Trick released an 8-track version on their new album). I think Kimberly Dawn has a very interesting story and is a bright light in the local music business.

More on Tribute Bands

I recently wrote about a lawsuit involving a musical tribute to Marty Robbins (http://tripaldredgelaw.blogspot.com/search?updated-max=2010-06-28T16%3A32%3A00-07%3A00&max-results=7). My friend and client Dennis Scott notified me of an interesting law review article with an exhaustive overview of the topic of tribute bands : Brent Giles Davis "Identity Theft: tribute Bands, Grand Rights and Dramatico-Musical Performances" published in the Cardozo Arts and Entertainment Law Journal (2006-2007). While I think that some of the author's analysis may be a bit heavy handed he does explore all of the issues surrounding performances involving tribute bands from the perspective of copyright law, trademark law and rights of publicity and then delves into the murky area of grand rights and dramatico-musical performances. He also identifies the sub species of "reverence bands"--think of The Long Players or Dennis' own band The WannaBeatles- and "tribute bands"--think Mini- Kiss. I think this is essential reading for anyone advising tribute bands.

Behind Every Succesful Album There is a Lawsuit

A model named Kirsten Kennis has sued the band Vampire Weekend, its label XL Recordings and others for $2 million claiming that she did not authorize the use of her photograph on the cover of the band’s successful album “Contra”. Apparently Ms. Kennis alleges that her signature on the photographer’s release form was forged. The photo was apparently taken in 1983. Making sure that one has secured a release from any person appearing on album artwork is a standard practice and it seems strange that that practice might not have been followed in this case. Indeed, a spokesperson for the label was quoted as saying “As is standard practice, Vampire Weekend and XL Recordings licensed the rights to use the photo on the cover of Contra pursuant to a license agreement that contains representations and warranties authorizing this use of the photo.” (that actually sounds more like a lawyer than a spokesperson). This case could conceivably have implications for photographers, art directors etc. The case will probably settle but it would be interesting to know what the actual value of the model’s image is worth.

Internet Porn, Fair Use and the Boogie Woogie Bugle Boy of Company B

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Charles Lamb Said It

"Lawyers, I suppose, were children once."

-Charles Lamb, from the epigraph to Harper Lee's "To Kill A Mockingbird" (1960)

In Case Delaware Indians Attack in East Nashville Mortally Wounding You and Scalping Your Son

I am always reminding people of the necessity of drafting wills, in order to take care of estate planning before there is an urgent need. However, any urgency I could suggest pales in relation to that faced by Jonathan Jennings. The Nashville Retrospect, which is fast becoming my favorite local reading, recently reported on the discovery of Mr. Jennings’ will, executed in 1780. Mr. Jennings, it appeared, had been mortally wounded by Delaware Indians in what is now my neighborhood in East Nashville. This will was apparently the first will to be recorded in Davidson County, Tennessee and states as follows:

In the name of God Amen. I Jonathan Jennings of North Carolina on Cumberland River having this day Received several wounds from the Indians and calling to mind the mortality of my Body do make and Ordain this to be my last will & Testament. And first of all I give and recommend my soul to God that gave it and my body to be disposed of at the Discretion of my executors. And as touching my Worldly affairs I dispose of them in manner following Viz… Item… I give and bequeath to my… It is my Desire that my Estate be Equally divided between my Wife my sons William, Edmond, Elizabeth Haranor Mary, Aggy, Anne & Susannah all but such a part as shall be hereafter disposed of … Item… I give and bequeath to my son Jonathan who was Scalped by Indians and rendered incapable of getting his living a Negrow girl Milla & her increase who is to remain with my beloved wife till my son comes of age. Also a Choice Rifle Gun & a Horse and Saddle Item I give my beloved wife Four Choice Cows and Caves. The Wards Milla and her increase and the Ward Jonathan being interlined I devise that my Loveing Wife and my son Edmond be Executrix & Exectutor of this my last Will & Testament, Jonathan Jennings…Signed Sealed & Published in Presents of Zach White, Js. Robertson, William Fletcher

This is pretty fascinating reading and another reminder of the need for proper estate planning, at nearly every stage of life. It also gives me a whole new perspective on my East Nashville neighborhood.

Thoughts on Pro Bono cases

I read an article in the Tennessean last month about the need and demand for free legal services in Tennessee exceeding the supply. The article pointed out that individuals facing criminal charges are constitutionally entitled to legal representation. But of course, this same guarantee does not apply in civil court. This is a major initiative of Tennessee Supreme Court Chief Justice Janice M. Holder, who recently unveiled the Court’s Justice For All program. The article mentioned the three primary ways that indigent people find legal assistance.

First, there is the Legal Aid Society, which represented almost 1,100 cases last year, but had to turn down many more cases.

Second, there is the traditional pro bono attorney. All attorneys are required by the Code of Professional Responsibility to do some amount of pro bono work, and despite the nasty image people often have of attorneys, most attorneys I know do pro bono work willingly and enthusiastically. The joke around most offices is that attorneys don’t mind doing pro bono work, we just like to be able to decide which ones are the pro bono ones.

Finally, I note that the Nashville Bar Association has launched a Modest Means Panel which will attempt to match attorneys with clients who have legal problems but can only afford to pay a certain amount per hour (in this case, no more than $75).

The reality is that most people cannot afford legal services on any kind of regular basis, and an unexpected legal emergency can be just as devastating as a medical emergency. One of the points I try to raise with folks who have questions regarding contracts or other business issues, is that they should not be afraid to consult with an attorney to avoid potential legal troubles later. I think all of us are in a position of wanting to help people and help them keep their legal problems from expanding.

I've been away

Everyone should see a glacier at least once. It puts things into perspective.

Another Reason for People to Distrust the Legal Profession

Here is another reason people distrust the legal profession.

As the New York Times recently reported , several law schools, including New York University, Tulane, Georgetown and even Vanderbilt are inflating grades --- essentially to help their graduates in this tough economic environment. I cannot express how reprehensible I find this and how hypocritical it is. The traditional law school model is to make a student’s entire semester grade depend on how he or she does on a final exam. Fair enough, I know I sound like an old guy, but we dealt with it. I suppose that I am lucky that the jobs I have had in law, from my summer clerkships on, were never dependent on my grades. Nevertheless, I would think any employer would be suspicious of a student with an inflated GPA. The general public certainly will be.

A Day in The Life

I have been listening lately to a lot of my fellow attorneys rant about the death of the music business lately. It is manifestly true that I no longer see the same kind of deals coming from record companies and publishing companies. But I keep feeling that I am, in fact, busy doing entertainment law work. Therefore, as a kind of practice management exercise (or maybe it was just therapy) one day, earlier this week, I kept a list of all the items that I worked on from morning till I broke for lunch.

Here’s what I came up with:

1. A telephone call with a client regarding advising his independent label on publishing and distribution issues.

2. Wrote a letter for a publisher client to someone who owed them money.

3. Wrote a letter for a client regarding a theatrical production he was involved with.

4. Wrote a letter to a client regarding several disputes regarding his Christian music project.

5. Responded to an e-mail from a client regarding a problem with their UK distribution deal.

6. Reviewed a re-draft of a Chinese licensing agreement.

7. Wrote a formal notice letter for a client to their publisher who is in breach of contract.

8. Reviewed a royalty statement for a producer client and forwarded it to him with his royalty check (clients love to receive checks).

9. Wrote a letter to SoundExchange to ascertain if certain Letters of Direction were in place.

10. Drafted an Amendment to a License with an independent record company.

11. Corresponded with opposing counsel on a litigation matter (regarding a band’s leaving member).

12. Corresponded with a client regarding a copyright infringement litigation matter.

Thus, not only did I end up having a very productive morning, I was pleased to note that all of the matters were squarely entertainment related. Plus, there was a global reach extending from Nashville to London to Hong Kong. Perhaps this is anecdotal evidence of the health of the entertainment business, even while the traditional music business suffers through its difficult current transformation.

Six Degrees of Separation

Anyone who knows me knows that I am a fan of the Beatles and I can revel for hours in all sorts of Beatles trivia and detail. Thus I was happy to learn that my former client, Bruce Sugar, recently co-produced Ringo Starr’s recent album “Y-Not”. I know that Bruce had worked on Ringo’s past albums, but it was nice to see him receive a co-producer credit. My first law partner and I worked with Bruce more than twenty (20!) years ago on what was essentially a huge collection case where an independent label with major label distribution basically stiffed about a dozen musicians, engineers, singers, and even a recording studio. It was a long hard-fought case, but I was always proud of the results we achieved for our clients. It was also an interesting introduction to the intrigue and slightly skuzzy inner workings of the record business. But I digress. I think it is amazingly cool to see Bruce Sugar rise from those humble beginnings to such an auspicious, fab assignment.

Richard A. "Pete" Peterson, R.I.P.

I am sorry to learn about the recent death of one of my favorite professors and mentors, Dr. Richard A. “Pete” Peterson, Professor of Sociology Emeritus at Vanderbilt University. Although I was an English/Philosophy major in college, I took every course I could from Dr. Peterson because he was the first person I ever knew who applied serious study to the music industry. This was not dry academia; his classes were a lot of fun. Sometime later, he published a fascinating book called “ Creating Country Music: Fabricating Authenticity”. Somehow, with Dr. Peterson’s influence, I was able to take my fascination with music, my future training in law and my understanding of the structure of the music business, and figure out how to make some sort of a career for myself and for that I remain forever grateful.

The Sincerest Form of Flattery

I have been following with interest the case of Robinson v. Petty in which the heirs of the late great Marty Robbins sued Jason Petty over his portrayal of Robbins in the tribute performance “Marty’s El Paso.” This case, which was pending in the United States District Court for the Middle District of Tennessee, settled on June 7. At issue in this case was not only the rights to such songs as “El Paso” and “White Sport Coat,” the renewal rights of which are owned by the Robinsons, but also the use of Robbins’ name, image and likeness, which are protected somewhat by a Tennessee statute passed in 1984, after the death of Elvis Presley. The Plaintiff also sued for federal trademark infringement, common law trademark infringement, and violation of the Tennessee Consumer Protection Act and Tennessee common law of unfair competition. Marty Robbins died in 1982. Musical tribute shows of all types are becoming an important facet in the entertainment economy, from Beatles tribute bands to the successful run of “Million Dollar Quartet” on Broadway, from “Always… Patsy Cline,” to the legendary Cheap Trick performing the even more legendary “St. Pepper’s Lonely Hearts Club Band” in its entirety. All of these examples, with the exception of the Cheap Trick performance, have engendered some sort of litigation. The Beatles’ company Apple is notorious for protecting its trademarks, as it probably should be. The common element uniting each of the presentations is that they require some degree of licensing from the underlying rights holders. Performers need to be sure that if their show is a dramatic/musical performance, that they have secured the grand performance rights from the appropriate music publishers. They also have to figure out if there are trademark issues or name, image and likeness issues involved. Although the various elements of these types of issues have been around forever, as performers seek new ways to earn a living playing music, the intersection of these rights will present a fascinating and complex emerging development in entertainment law.

Tax Relief for Flood Victims

Victims of Tennessee’s recent floods may qualify for some indirect help from an unlikely ally, the Internal Revenue Service. It appears that because parts of Tennessee have been declared a federal disaster area, the IRS will let people who suffered a casualty loss take a deduction for the loss off their federal income tax. Also, the deduction can be taken off the 2009 tax return (and if you have already filed for 2009, you can file an Amended Return). There are wrinkles to this, so it is important to check with a tax professional. Note that there may also be additional residential energy credits if you replace windows and certain heating and cooling units. Finally, in Davidson County, the Davidson County Assessor of Property is developing a plan to assist owners of property “substantially damaged” or rendered unfit for occupancy. This plan would allow for a pro-rata adjustment of their 2010 property taxes.

If You Can't Type Something Nice Part 2

On May 30th of last year, I wrote about the risks of being sued for libel by posting online It appears this problem is becoming more widespread. The May 16^th issue of The Tennessean carried a story about a local man who had been sued by a Florida condo owner because he had posted a negative review of a rental condo on TripAdvisor.com. This is exacerbated by the Florida Court’s somewhat broad expansion of jurisdiction. It appears that if you exercise your First Amendment rights to free speech on the internet, you run a serious risk of being sued by a litigious condo owner. The traditional concept of “truth” as a defense to libel probably pales when one considers the costs of hiring counsel in another state to defend your rights. This is not good news for First Amendment absolutists, but it is pragmatic advice for the rest of us.