Book Report: The Doors Unhinged

My wife tells me that I read entirely too many music books.  Also, as an attorney, I must confess to a soft spot for legal thrillers.  If you put the two together, I can guarantee I’ll read it.  (Right here is a good place to praise Stan Soocher’s They Fought the Law,  one of the best nonfiction music/legal books out there – a fascinating read).

            However I want to write about John Densmore’s The Doors Unhinged (Percussive Press 2013), an engrossing first-person account of Densmore’s lawsuit (and ensuing counterclaim) against Robby Kreiger and the late Ray Manzarek).   The subtitle  of the book is “Jim Morrison’s Legacy Goes on Trial” and that is pretty accurate.  Music fans with long memories may recall that in 2004, Densmore sued his former band mates for violating the Door’s longstanding partnership agreement and touring with another singer and drummer as “The Doors.”  Kreiger and Manzarek filed a counterclaim against Densmore suing him for a mere $40 million, essentially for breach of fiduciary duty to the band partnership because of his failure to agree to license the band’s songs for various commercials.

            Early in the book Densmore recalls how the late Jim Morrison was vehemently  against the use of The Doors’ songs in commercials.  Densmore felt that he had to honor Morrison’s legacy and the band’s original partnership agreement by continuing to veto any commercial exploitation of the band’s music.  There is a fascinating section where Densmore discusses The Doors’ original attorney, Abe Somer, and the band’s original partnership agreement.  We forget sometimes that there was a formal music business back in the ‘60s and this section of the book fascinates me.

            All of this leads to a trial in civil court in Los Angeles.  Densmore’s depiction of the trial is spot on.  He gives a wonderful description of his own counsel Jerry Mandel as well as opposing counsel John Lavely.  People are strange and it is really strange to see icons of a generation reduced to spiteful litigants but it is this inherent drama of Morrison’s legacy versus 21^st century economics that makes this story so compelling.  Of course you root for Densmore and his ideals but you can’t help but feel sympathetic to Robby Kreiger and Ray Manzarek when faced with the opportunities to profit off of work they did 40 years earlier. It would be hard to resist.  Densmore also gives a great description of the life of a lawsuit from the discovery phase through the actual trial itself where monotony goes head to head with angst and fear until the trial itself becomes almost a new daily reality for the litigants.

            As in all legal thrillers, I won’t tell you how the book ends.

            If I have any criticism, it is that the last chapter is totally unnecessary and a bit self-serving.  Still, one is left with the impression that Densmore is one of the good guys.  As Tom Waitssays in the blurb, “John Densmore is not for sale and that is his gift to us.”  I highly recommend this book to fans of The Doors and to those with an interest in the legal inner workings of a rock and roll partnership.

The Go-Go's lawsuit: a Test of Band Agreements

After three decades of practicing entertainment law I have learned that all bands are dysfunctional - it is a fact and it has nothing to do with the genre of music.  Therefore one of a music lawyer's biggest challenges is to try and get band members to execute a partnership agreement (or Operating Agreement depending on their type of business entity) to define the parameters of their relationship and to consider such issues as ownership of the band name, division of royalties and dealing with leaving members. 

            It is an imperfect art.  For example, many bands in Tennessee set up limited liability companies without operating agreements only to find that the statute on limited liability companies offers very little help in dealing with disputes. 

            Sometimes even the best made arrangements can be thwarted.  I have been reading the complaint filed two weeks ago in California in the case of Kathryn Valentine v. Carlisle, Wiedlin, Caffey Schock and Gogoco Corp.  The 34‑page complaint is daunting but it basically lays out Kathy Valentine's claim that the other members of the Go‑Gos, used corporate chicanery to dilute her interest in the band's revenues after essentially filing her from their 2013 tour. 

            The complaint lays out the facts that the band had previously set up an LLC called Ladyhead, LLC which owned the trademark to their name and collected royalty income (other than other individual songwriting income) and a touring corporation called Smith-Pocket Industries, Inc. which collected touring income.  The five Go‑Gos were equal members of each entity. 

            Valentine alleges that unbeknownst to her, her band mates set up a new corporation Gogoco Corp. and licensed their trademark and  good will to it which (to quote from the complaint) "if successful would shrink Plaintiff's share of the group's revenues purportedly falling within this license from 20 percent to 2 percent, is a textbook example of breach of fiduciary duty and abuse of control and is illegal under California law and impermissible under the group's governing corporate documents".  The complaint goes on to state "This 'license' is nothing more than an attempt by a majority (of shareholders) to take corporate assets owned by all of the members of Ladyhead, LLC and the shareholders of Smith‑Pocket and assign them to an entity that these four defendants control for the sole purpose of excluding and diluting a minority shareholder and member from her ownership interest". 

            The complaint outlines causes of action for breach of fiduciary duty, breach of contract, breach of the implied covenant of good faith and fair dealing and tortious interference with contractual relations. 

            Who knows if the allegations are true - if they are it seems like an imaginative if short-sighted way to deal with a band member you don't want to work with anymore.  The lawsuit makes it seem as if the Go‑Gos had a fairly sophisticated and equitable structure to run their business and that the band members went to great lengths to not have to honor it.  All of this is sad and it kind of proves a point that I have thought about for years.  If you are a minority member in any organization - be it a rock band or an accounting firm and the other folks don't want you around anymore you're probably going to get screwed, and a lot is going to depend  on the strength of your partnership agreement and the ultimate character of your partners.  It is never pretty.  The litigants in this case had no comment because their lips were sealed.

On The Legal Status of a Rock and Roll Band

Dealing with disputes among band members (and former band members) is one of the most difficult areas an entertainment lawyer can get involved with.  The legal organization of a musical group involves intersecting area of corporate law, copyright law and trademark law, as well as basic human emotions.  When group members function together in perfect harmony their business models can be a source of inspiration.  However, when human conflicts enter the picture, even the best organized entity can show its shortcomings.

            I have read about two interesting cases recently.  The first involves the 1980's band Queensryche.  According to published reports, the band's corporate entity voted to remove founding member Geoff Tate as lead singer of the band, following a Spinal Tap-like series of events.  The other band members apparently set forth very good reasons why they felt they could no longer continue with Tate in the band and based on provisions set out in their original partnership agreement, they expelled him-subject to a duty they recognized to account to him for his share of profits.  In order to avoid even further controversy, the "new" entity even began performing under a different name, "Rising West" to avoid potential trademark problems.

            Nonetheless, Tate has sued his former partners alleging a host of indignities the most significant being corporate oppression.  This seems to be a text book case in using corporate law to attempt to wrestle some benefit out of an entity and to essentially punish former band mates from working without him.  This scorch the earth technique is far from certain in most cases, especially those involving human feelings and egos.

            An even stranger case  I just read about involves a former member of the J. Geils B Band who happens to be named J. Geils, who is apparently involved in a trademark battle with his former band mates.  It seems that both J. Geils and the J. Geils Band (under their corporate entity T& A Research and Development Corp.) have filed competing trademark applications to try and protect the band's trademark.  This has apparently led to litigation in both the Patent and Trademark Office and in federal court. Buried in the evidentiary murk of all of this, is the fact that at some point in the past all the band members signed a shareholders agreement restricting their right to use the name "J. Geils Band" independently.  If that is true, we may end up with a case of an individual being able to perform under his own name due to activities he once undertook as a shareholder.

            All of this seems to demonstrate the point of this tale,  which is that dealing with disputes among band members is usually very, very difficult.  I've been involved in a lot of these disputes and I can say that more often than not, corporate structures and shareholder agreements as well as form cookie cutter LLC agreements have been virtually worthless in resolving these disputes; while a good well thought out partnership agreement always seems to be both enforceable and convincing to all parties involved.  The moral here is that a band needs to have these discussions early on in their careers and to commit their agreements to writing in a cogent, equitable manner.  It is a discussion that no band wants to have, but it is absolutely vital.

The Daughtry Lawsuit

It’s a cliché because it's true. Behind every successful album or artist there is a lawsuit. The latest lucky winner is former American Idol winner Chris Daughtry who is being sued by three former band mates (from his pre- Idol days) for "constructive fraud," "breach of fiduciary duty," "unfair trade practices," and other deceptive and wrongful conduct.

I have not had a chance to review the complaint but other than the allegation of breach of fiduciary duty, the other claims seem a little strong for a case of this nature They appear to stem from the fact that the plaintiffs are claiming to have co-written two songs with Daughtry who allegedly then combined the songs on his first solo album and gave himself sole authorship credit. There is apparently also a claim to income from other songs including the hit "Home" based on an alleged agreement to share all revenues equally. The reports I read did not indicate if this agreement was oral or written, but to my mind that’s going to be a key factor.

As in all these cases, there is probably some truth to both sides and both parties are going to have some interesting evidentiary problems. I don't know the situation with Chris Daughtry and his former band mates but I do know that most of this could have been avoided by having a written partnership agreement in place. I try to make this point to new bands whenever I can and I usually get ignored – mainly because no one wants to spend the money to prepare a partnership agreement or other governing document – but I can tell you from experience that such an agreement, which defines band members splits and sources of income (i.e. is publishing included or not?) will always go a long way in protecting artists from lawsuits like this, or conversely can protect your right to income if your former partner gets rich and suddenly forgets what he or she once signed.

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.

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.