Let Us Now Praise Don Henley

I am not really  an Eagles fan.  I think the band peaked around the time of "Already Gone".  However I became a born again Don Henley fan after hearing "The Boys of Summer" and "The End of the Innocence".  That whole album hit me at the right time and it has become a favorite.

            I have become somewhat bemused  at the dispute between Don Henley and the band Okkervil River.  Apparently the group  posted a cover recording of Henley’s "The End of the Innocence" online as part of a free mix tape.  Henley, being a prudent copyright proprietor instructed his attorneys to send a demand letter requiring that the song be taken down.

            According to a quote from Australia's The Music, Okkervil River founder Will Sheff responded by saying "It's a real dick move man.  I guess he's an old‑fashioned guy who doesn't understand.  I mean the f..ing thing was free!  I don't really get what his issue with it was."

            The issue is apparent.  One artist thinks he can exploit another artist's intellectual property without compensation because it's being given away for free.  Henley as a copyright owner has exclusive right to distribute and perform his compositions and the right to stop the infringement of those compositions.  I actually applaud Henley for taking a principled  stance against the cheapening and devaluation of music.

            I have no problem with an artist deciding to give their own music away – I don't really agree with the premise but again, I don't have an issue with someone making an informed decision about their own copyrights.  However,  this band needs to respect Henley's property right and to get away from the notion that because you're not charging for your work somehow the other copyright participants should be supportive of your endeavors and not charge for their work.

            I don't really want to single out Okkervil River – they're an interesting band (and they have recorded with one of my heroes – Roky Erickson) but I am reminded of the current hue and cry from musicians over the streaming services such as Spotify and Pandora not paying artists and songwriters enough money.  This is a battle that has yet to be decided --but in order to advance the cause for artists trying to increase the  value of their work we have to do everything in our power to get rid of the notion that music is and should be free.  Don Henley has been a strong advocate for artists' rights for years and I believe his actions in this case demonstrate  a stand for  songwriters' rights; this is  anything but a "dick move".

Book Report: Ashley Cleveland and Mac Gayden

Two of my friends and  clients have recently published books and I am happy to report that they are both excellent reads.

            The first book I covered was Ashley Cleveland's memoir Little Black Sheep (David Cook 2013). When I think of Ashley Cleveland,  I think of the fact she is one of the finest rock singers I’ve ever heard  and that she seems to exude such happiness when she performs.  She has won a Dove award but she knows how to sing the Rolling Stones.  I found her book uplifting, heartbreaking and humorous all at the same time.  She is very honest in describing the large and small tragedies of her life and it is the universality of her struggle (meaning that every individual can relate to the problems she has had to overcome) coupled with the straightforward way that she describes her salvation that makes this book so compelling.  This is a story where the good guys win.

            Mac Gayden’s Missing String Theory (Elephant Walk Press, 2013) details a spiritual journey of a different path.  I have known and worked with Mac for years and of course, I knew of him long  before I met him.  Mac’s book is fascinating because it gives a detailed view from his unique position in Nashville (from playing in frat bands to co-writing “Everlasting Love” and “She Shot a Hole in my Soul” to Area Code 615 and Barefoot Jerry to “Blonde on Blonde,” “Morning Glory”, J.J. Cale… it just goes on and on.  Also there are  some great anecdotes about the famous and infamous and a lot of Nashville history.  Mac’s musical story coincides with  his spiritual growth and this is a profound story as well.   The book functions not only as an autobiography but as a cultural study of a very special  time in Nashville and of a gifted individual who musically bridges every important music scene to come out of this city  since the 1960s.  Even today Mac continues to do important work.

            I really enjoyed reading both of these books partly because I’m a fan of both Ashley and Mac but also because I now have a stronger sense of the conviction that goes into their performances. ..it’s not just singing and playing.  I think that we are very lucky that they have both shared   their stories.

Making Sense of the Tennessee Legislature's Legacy Sound Recording Protection Act

I have been trying to figure out the two new bills introduced in the Tennessee Legislature by Stacey Campfield and G.A. Hardaway dealing with digital performance royalties for pre-1972 recordings. The first bill called "Legacy Sound Recording Protection Act" states on its face that "the owner of a sound recording initially fixed on or before February 15, 1972 has the exclusive right to (among other things)” perform the sound recording publicly by means of a digital or satellite audio transmission".

As Betsy Phillips pointed out in the Nashville  Scene blog, the bill goes hand in hand with another bill which apparently seeks to establish a payment to artists on the resale of fine arts (this is similar to a law in California and other states).

Strangely, my gut reaction that all of this state law action would be preempted by Section 301 of the Copyright Act was incorrect due to a provision in that section that states "with respect to sound recordings fixed before February 15, 1972 any rights or remedies under the common law or statutes of any state shall not be annulled or eliminated by this title until February 15, 2067."  It is well known that there is currently no federal copyright protection for sound recordings created prior to February 15, 1972.  However, I didn't realize that the Copyright Act specifically recognizes state laws protecting these older sound recordings.

 Until recently, state laws have been used fairly successfully in dealing with issues surrounding pre-1972 recordings. Campfield's bill draws attention to the fact that because there is no federal copyright protection for these older recordings, there is no digital performance royalty for these sound recordings either.  As digital delivery of music gains ever increasing traction, there appears to be a growing consensus that this needs to be remedied by Congress.  However as much as Campfield and Hardaway are to be commended for actually attempting to do something about this problem, it seems inconceivable that the law of one state (Tennessee) could protect "owners" of sound recordings in the other 49 states or that all 50 states would adopt some sort of uniform law  It also seems like a nightmare to lump these "owners" in with "artists" under the second proposed bill.

            I don't think this bill is the answer but I do think it is a step in the right direction and that it could force Congress to consider taking action in this area. Whether preemption applies or not, this is really a federal issue.

John Fogerty and Saul Zaentz

Saul Zaentz died a few weeks ago at the age of 92.  He will be remembered  by many people as one of the founders of Fantasy Records, as well as a pioneering independent film producer (“One Flew Over the Cuckoo’s Nest,” “The English Patient,” and “The Lord of the Rings”, among others).

            And he brought Credence Clearwater Revival to the world.

            Among  legal scholars, he has a special place, due to his history of disputes with John Fogerty. 

            In one of the stranger courtroom battles of recent history, Zaentz sued Fogerty claiming his 1984 comeback hit “The Old Man Down the Road” infringed upon his own earlier composition “Run through the Jungle.”  Think that through for a minute. Fogerty prevailed but had he not, we would have had a precedent in this country which would make songwriters liable for infringing upon themselves. 

            Fogerty’s next action against Zaentz had an even more profound impact.  He sought reimbursement for his attorneys’ fees as the prevailing party in the litigation.  Although the Copyright Act awards attorneys’ fees to the “prevailing party” in a copyright infringement action, up until that time,  it had always been assumed that a defendant could only recover attorneys’ fees if the plaintiff’s action had been frivolous or filed in bad faith.  Both the trial court and the court of appeals took this position.  Fogerty appealed to the United States Supreme Court which ultimately ruled in his favor in a 9 – 0 decision, holding that  the Copyright Act contained no such caveat on a prevailing party’s right to seek reimbursement of attorneys’ fees.  It is widely believed that this important decision led to a marked decline in the number of copyright infringement lawsuits being filed since the risk of losing could make that party liable for the other party’s attorneys’ fees.

            Interestingly enough, Fogerty and Zaentz were involved in at least one other major dispute.  Record geeks know that the first pressing of Fogerty’s album “Centerfield” contained a song titled “Zanz Can’t Dance” about a larcenous pig (there’s even a video).   Fogerty later changed the title to “Vanz Can’t Dance” but not before Saul Zaentz filed a $140 million defamation lawsuit against him.  Wisely,  that case was settled out of court but if it had proceeded to trial, would have made for an interesting transcript.

            We owe John Fogerty a huge debt for standing up and taking a bold stance for artist’s rights and making at least two important contributions to copyright law.

Let Us Now Praise Paul Burch

I don’t know how long I have known Paul Burch but I was somehow shocked to see that his first album Pan American Flash came out way back in 1996.  I first became aware of Paul as one of the really talented young musicians who made a name for themselves playing on lower Broad during Nashville’s last great credibility scare in the early to mid‑1990s (along with Greg Garing, RB Morris and BR5-49).

 Since then Paul has released an astonishing bunch of records  both individually and with his band the WPA Ball Club.  His discography even includes an effortlessly brilliant tribute to Buddy Holly (2011’s Words of Love).

 Although ostensibly mining the country field, Paul’s songs bring to mind Greil Marcus’s description of “that old weird America” and I mean that as a compliment.  There is a timeless quality to his songs that is both immediate and disorienting.  The late Chet Flippo put Paul on the front page of Billboard and with his new release Fevers on a cool new label Plowboy Records  (home to Chuck Mead among others) here’s hoping that Paul gets the wider attention he deserves.  For Nashvillians, I know that Paul is a playing a residency this month at the Stone Fox.  Go see him.