..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.