Come Together: John Lennon and Morris Levy

The 50th anniversary of the release of Abbey Road got me thinking about the most bizarre Beatles related legal battle:  John Lennon's multilayered dispute with the infamous Morris Levy.  Levy was the colorful  and shady music business kingpin whose empire included Roulette Records, the Strawberries Records chain, nightclubs and numerous other enterprises. He was eventually convicted of extortion but was able to escape prison by dying.

 Abbey Road of course starts with Lennon's composition "Come Together," which features the line, "Here come old flat top, he come grooving up slowly".  Levy's publishing company Big 7 Music sued the Beatles' publishing company and Apple Records claiming that the song infringed upon the Chuck Berry classic "You Can't Catch Me," (which contains the line "Here comes a flat top, he was moving up slowly").  Morris Levy had obtained the copyright to the Chuck Berry composition from Alan Freed.  The lawsuit was apparently prepared for trial, witnesses deposed, experts hired, etc. when Lennon and Levy arrived at an ingenious settlement of the case.  Levy would agree to drop the suit if Lennon would  record "You Can't Catch Me," along with two other Big 7 songs for his next album. 

 The idea must have seemed simple to Lennon because he was planning to make his next album a record of covers of great rock and roll songs.  Levy's catalog contained a number of such classics including Lee Dorsey's "Ya Ya" and "Angel Baby" both of which Lennon pledged to record.  Beatle fans know that nothing is simple and it didn't really happen like this.  

 In what should truly become a feature film,  Lennon began the sessions for this album "Rock and Roll" with Phil Spector and there were reports of drug and alcohol fueled drama complete with Spector firing a gun in the studio (a bit of horrific foreshadowing).  Very little was accomplished before Spector abandoned the sessions and absconded with the master tapes.  While Lennon's representatives negotiated with Spector for the return of the tapes Lennon produced an album for Harry Nilsson  and completed his own Walls and Bridges, on which he recorded a charming but insignificant version of "Ya Ya" with his son Julian.  

Apparently Lennon decided to try and salvage the Spector tapes and record additional material for the album in New York.  Because Lennon had technically breached the settlement agreement by not releasing these recordings on his "next" album Levy became a constant presence in his life, flying him, May Pang and Julian to Disney World, taking him and his band to his farm in upstate New York to rehearse and somewhere along the line Levy got the idea that Lennon had given  him the right to sell the forthcoming record through television mail order advertising ("operators are standing by") on his ADAM VII label.  The facts are befuddling and common sense would indicate to  any rational person that the Beatles' exclusive agreement with EMI would prohibit a third party from releasing  any solo Beatle recordings but Morris Levy was not any typical record company owner.  Apparently Allen  Klein is involved in the story too and may have added fuel to the fire.  Unbelievably, Morris Levy took a rough mix of the recordings which Lennon had given him, slapped an out of date 1968 photograph of Lennon on the cover and began selling Roots:  John Lennon Sings the Great Rock and Roll Hits.  This of course to led to Capitol Records rush  releasing the Rock and Roll album,  Capitol and Lennon both suing Levy and Levy suing Capitol, Lennon and everybody else he could think of.  The reporting of the trial, brilliantly captured in Stan Soocher's book Baby You're  A Rich Man:  Suing the Beatles for Fun and Profit is fascinating, showing a side to Lennon rarely captured.  At the end of it all, the trial judge ruled that Lennon had in fact breached his original settlement agreement with Levy by not releasing "Angel Baby"  (it was posthumously released) but Levy  was enjoined from distributing  Roots,  Lennon was awarded damages for Levy's damage to his reputation from releasing substandard product and Capitol Records was awarded damages for lost profits.  

The Roots album has gone on to become one of the holy grails of Beatles collecting.  Originals are hard to find although counterfeit copies are somewhat easier to locate.  

The irony of all this is that I don’t think Levy would have prevailed in his original  lawsuit. Although the statutory defense to infringement known as  fair use was not codified as a at the time of the original 1970 litigation (it was added in the Copyright Act of 1976) it was still a viable defense and one could argue that Lennon's quote of a single line from a Chuck Berry song in his  song "Come Together" was not in fact copyright infringement.  Most of the case law (at least the case law prior to the "Blurred Lines" decision and the recent Katy Perry decision) would tend to support this theory.  On the other hand, Lennon's idea to simply record a handful of Levy songs to make the lawsuit go away makes a lot of sense.  Perhaps he was also thinking about what his former band mate George Harrison was about to endure with the "My Sweet Lord/He's So Fine" litigation.  But those are different songs and different stories.  

Book Report: Baby You're a Rich Man: Suing the Beatles for Fun and Profit

            Stan Soocher has written the Beatles' book that I have been waiting for. is a detailed examination of nearly all the important litigation surrounding the Beatles from the unraveling of Brian Epstein's ill‑advised early merchandising deals to their deep, complicated and litigious relationship with Allen Klein.  Don't be put off by the "legal" nature of this book.  Soocher is an entertaining writer and he has a gift for bringing out the personalities of many of the people who previously served as mere footnotes in Beatles history (like Pete Bennett, David Jacobs, Nicky Byrne, Nat Weiss, John and Lee Eastman and Walter Hofer).  As an aside, Soocher's first book They Fought the Law:  Rock Music Goes to Court is also a must-read. 

Baby You're a Rich Man:  Suing the Beatles for Fun and Profit

            Soocher goes into great detail about topics that I have always been curious about.  For example, the aforementioned merchandise debacle, the fight over Northern Songs, the IRS problems surrounding the  Bangla Desh concert, Paul McCartney's suit to end the Beatles partnership, the crazy dispute between John Lennon and Morris Levy which resulted in the Roots album, Lennon’s immigration struggle   and even the tragic battle between George Harrison and Dennis O'Brien which resulted in a St. Louis bankruptcy court punishing Harrison for his inability to attend a deposition, mere weeks before his death. 

            The real paradoxical character in the whole Beatles saga remains Allen Klein.  What would cause him to purchase the copyright to "He's So Fine" and litigate against his former management client – a clear breach of fiduciary duty?  Even more astonishing what would motivate a man who as manager for both the Beatles and the Rolling Stones (among other top artists) was privy to some of the most spectacular music industry deals of the era – to run a side business selling promo copies of his artists' records for a few extra bucks?  (There is a new Allen Klein biography by Fred Goodman which I really need to read). 

            I already thought highly of Stan Soocher as an attorney and a journalist before I read this book.  I am really pleased that he tackled this complicated topic with great skill.  I hope we can convince him to take up the challenge of writing about the Beach Boys' litigious career next. 

Blurrred Lines

I have been trying to write something cogent about the “Blurred Lines” verdict since last week.  Several clients and students have asked me my opinion.  Admittedly, I really did not pay too much attention to the case, except to watch that video (for research purposes of course) and play the great American parlor game of listening to the song “Blurred Lines” and “Got to Give It Up” back to back like a Monday morning musicologist.

            I have read lots of commentary on the verdict from a host of experts, who all have differing opinions as to why the jury was wrong.  Most believe that the case will not survive appeal, or will be settled and disappear.

            I personally hope that a great legal journalist like Stan Soocher can get hold of the transcript, talk to the key players and tell us what really happened, because procedurally the case is fascinating. 

            I can’t help but think that there must be something there. Otherwise the case would not have survived summary judgment (the pre-trial procedure whereby a moving party seeks to establish that there are no genuine issues of material fact at issue). 

            It seems that once the case moved beyond that phase and into the hands of the jury then there were multiple possible outcomes.  The most fascinating thing I read all week was an interview with the Marvin Gaye Estate lawyer Richard Busch (a member of the Nashville Bar) in the Hollywood Reporter where he detailed in very specific terms the reasons why he thinks he won the case.  I believe that at the end of the day the plaintiffs were able to convince the jury of the substantial similarity of the two works and this prevailed over the defendant’s insistence that there were “note per note differences” between the two songs.  As Busch states in the interview “this was a straight up copyright claim over compositional elements that we believed had been taken.”  Interestingly, Busch highlighted the assistance of two musicologists he employed as expert witnesses, Judith Finell and Ingrid Monson.  I am sure that their testimony was extremely important to the jury, as were the apparent inconsistencies in the testimony of Robin Thicke and Pharrel Williams. Something must also be said for the fact that Thicke and Williams essentially started the lawsuit by filing a declaratory judgment action against the Gaye Estate (seeking a court judgment that there was no copyright infringement).  I can’t help but believe that this strong arm tactic must have had some effect on the jury.

           

            Will the case have the “chilling effect” on creativity that many commentators are concerned with?  Will it encourage a rash of lawsuits from aggrieved composers and artists now emboldened by this decision?  I don’t really think so. I think that as Busch said, this was a straightforward case of copyright infringement and the plaintiffs did a better job of proving their case.If the jury went too far then  I think that this is going to be an important case to watch on appeal.

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.