Songplugging Lawsuit: Pickin' and Suin'

Occasionally people will ask me to recommend song pluggers to them and it is a question which fills me with anxiety.  The problem is that there is no one size fits all kind of plugger – and each relationship is special.  For the uninitiated, a song plugger is the person who “pitches” a songwriter’s material to  artists, producers and A & R people for consideration.  It is a difficult job – especially in this time when the number of major labels and recording artists has declined.  It is also a field with a very low success ratio.  For every great story of a song pitch leading to a breakthrough hit single, there are a million stories of the A& R person “just not hearing it …” Finally, it is also a process that largely goes on behind closed doors, so the writer may be unaware of all the things the plugger may or may not be doing to advance the writer and his or her material.

            My friend, journalist Tom Wood told me about a lawsuit that’s recently been filed in state court here in Nashville:  Donaldson v. Keaton.  I don’t know the parties but it is essentially a lawsuit filed by an aggrieved songwriter from Ohio against a Nashville song plugger he had retained to pitch his songs.

            The complaint is a model of legal drafting being both informative, educational, fact laden and persuasive.  The plaintiff, Donaldson has sued for fraud, promissory fraud, a violation of the Tennessee Consumer Protection Act, breach of contract and negligent misrepresentation. Over 207 separate paragraphs, the plaintiff’s attorney  carefully lays out a case against the song plugger, Keaton.  am keeping a copy of the complaint on file for future reference.

            It is hard to know what really happened in this case but one can imagine what might have transpired to lead to this dispute.  I will say that the  one part of the complaint that was kind of chilling is found in Paragraph 23:  Plaintiff started to get suspicious in mid‑2014 about whether Keaton was providing services as agreed to because no results were being obtained after approximately 16 months of paying Keaton for services.

            Therein is a hard truth – plugging is an occupation where with even the most talented writer and the most connected and reputable song plugger – it might take more than 16 months to get a tangible result.  One might never get the results.

  I have been on both sides of this issue and I don’t see any simple solutions but it does bring to mind the old cliché:  “You must be present to win”.  Most writers (and artists) who achieve any kind of success in Nashville do so by being present in this town – working, networking, keeping their ears to the ground.  I think that this kind of long-distance business relationship described in the complaint is fraught with the potential for miscommunication and misunderstanding.

Revisiting the Holographic Will

It seems that it is always a good time to review this.  The other day a client asked me if an elderly friend could “dictate” the terms of his will and then sign the transcribed document.  In Tennessee, the answer is no.

            Since 1941, the law in Tennessee has been that a will must be signed by the testator and two or more attesting witnesses who must sign as attesting witnesses in the presence of the testator and in the presence of each other. 

 

            The only significant exception to this is the holographic will which is defined in Pritchard on Wills and Administration of Estates (5^th Ed.) as “a paper writing appearing to be the last will of a deceased person, all the material provisions of which are written in his own handwriting” and “the testator’s name must have been subscribed to it, or inserted in some part of.”  There must be proof by at least two people that they recognize the deceased’s handwriting.

            Note the important part – all the material provisions must be in the testator’s own handwriting.  This is the part that seems to get so often overlooked in the age of word processing. 

            The bottom line is this – there is nothing wrong with someone writing their own will – but it must meet all of the requirements of a holographic will.  If not,  it is completely void. People have occasionally said to me that they don’t mind the document being void as long as it expresses their intent, but this is meaningless. If you die without a will your property passes by the laws of intestate succession—which may or may not be what you intended.  In this era of online will kits and the like, the crucial distinction between a holographic will, a properly attested will and a legally void document often gets overlooked.  This is one of those important times when it just makes good sense  to review the terms of the will with an attorney and have them handle both the preparation and execution of the document itself.

Hubris: My Adventures in the Record Business

In 2003, after 20 years of toiling in the fields of intellectual property I got the idea that I had the record business figured out and that I could some help artists that I liked release, distribute and sell their music.  I could sense that much of this work was practical common sense stuff but it was daunting to a lot of musicians.  From my years of watching artists and record companies, I sensed that there was a tremendous amount of money being wasted.  I wanted to start a record company.

I used a free plane ticket to go visit a distributor I had a good working relationship with.  They agreed to work with me.  Then I convinced a good friend and client to let me release his next solo record.  Part of my game plan was that I only wanted to work with artists who had previously  released records and had some kind of market awareness.

My friend finished his record and  we got another friend to design a cover.  I was shocked to discover that  my first choice for a label name was already taken. I was in such a hurry that I didn’t have time to get a logo for my first release.  I reserved a web site domain name.  I hired a publicist, lined up manufacturing and (to paraphrase John Prine) put my hand on a rock and started  a record label. 

I figured that in 2003 – 2004 the concept of chasing radio was foolish so I limited my radio push to a few selected college radio stations (remember them?) and friends with internet radio shows as well as some international shows.  I had a client who ran an international export business and he helped us out with some foreign sales.  I gave my publicist a bio and a bunch of CDs and wished her  Godspeed.  My artist/friend did an in‑store at Tower Records (remember Tower?). 

We generated a bunch of orders from retail outlets like Best Buy, Tower, Amoeba, the Trans-World Stores, etc.  

So what happened?

Actually the first record was sort of successful despite the fact that the artist did not tour.  The record itself was excellent and generated some really spectacular reviews.  I was happy to latch onto many of the in‑store marketing opportunities my distributor offered.  We flirted with the beginning of digital distribution. 

Then I decided to release a second record.  This was by a lesser-known artist who had been a member of a much-loved band.  He had no solo track record but I loved his songs and he put together what I consider to be a brilliant record.  I hired a photographer friend to shoot the cover, used the same album designer and publicist as the last time, got a few orders through my distributor, a glowing article in the artist’s hometown paper and then…nothing. 

The world didn’t care. 

Again,  part of the problem was that the artist didn’t tour but I was also beginning to learn some dirty little secrets that I was not aware of previously.  For example, it’s difficult to get reviews when you don’t buy ads.  Also, I was witnessing the simultaneous obliteration of retail record stores and many of the print publications I had assumed were going to be around forever (remember No Depression?).  I also witnessed firsthand the explosion  of internet file sharing.  It was one thing to witness as a fan, another to witness as a lawyer, and quite another thing to witness as a label owner. 

So while my first record sold respectably, the second record sank without a trace.  The real end came for me when UPS showed up at my office door with 12 big boxes of CDs; the dreaded “returns”.  Most of these boxes still reside in my garage. 

The label still exists in the digital realm but my fantasies  of finding more artists, releasing cool records on vinyl, re‑issuing some of my favorite recordings were pretty much gone, at least for the present. 

What I gained from this experience is a really healthy respect for all the independent label owners out there.  Even though I thought I understood the work they do. I realize that my knowledge just scraped the surface. 

However…I still want to put out that Raging Fire compilation album…

Marvin Gaye's Contributions to Domestic Relations Law

Music and law often interact in interesting ways.  Lately, I have been thinking about a record that for whatever reason had a big impact on me thirty years ago – Marvin Gaye's Here My Dear a double-album released at the end of 1978.

                What I had nearly forgotten was the fact that the album was designed by Gaye and his attorney as part of a divorce settlement with his first wife (Berry Gordy's sister) Anna.  Ostensibly, because Marvin could not afford to pay alimony or child support he and his attorney came up with the concept of assigning the royalties from his next album  to his former spouse – and like the great artist he was, Marvin took the concept and ran with it.  Many artists have done "break-up" albums (David Allen Coe, Bob Dylan and Bryan Ferry come to mind) but Marvin Gaye traces the entire course of a relationship from beginning to painful end.  All of this is contained in one of the most over-the-top sleeve designs of the '70's.  The album also contains one of the great romantic couplets of all time:  "Somebody tell me please, why do I have to pay attorney's fees?".

                Marvin Gaye was a troubled soul but a genius whose career was tragically cut short.   His contributions to music are legendary; it is nice to be able to note his singular contribution to family law.

Chancellor Irvin H. Kilcrease, Jr.

I read last week about the death of former Chancellor Irvin Kilcrease, Jr. If I recall correctly, I tried my first real case in front of Chancellor Kilcrease back in the 1980’s. He was patient and unfailingly polite with me as I systematically forgot each of the Rules of Civil Procedure (remarkably, we still won). I noticed those same qualities in Chancellor Kilcrease every time I appeared in his court until the time he retired in 2003. I also remember thinking that he really took the time to understand the litigant’s arguments before ruling.

I really admired this gentleman and I don’t think we’re going to see a lot of judges like him in the future.

The Indemnity Clause

Do you want to see a client’s eyes glaze over? Heck, do you want to see a lawyer’s eyes glaze over? Then spend a little time reviewing the indemnity cruise of a typical recording contract or music publishing agreement. Here’s an example:


Indemnity: Writer hereby indemnifies, saves and holds Publisher, its successors and assigns, and its parent, subsidiary and affiliated companies and its and their respective officers, employees and agents harmless from any and all liability, claims, demands, loss and damage (including, without limitation, reasonable attorneys' fees and court costs) arising from or connected with any claim, demand or action or by a third party which is inconsistent with any of the warranties, representations or agreements made or assumed by Writer in this Agreement which is reduced to a final adverse judgment or settled with Writer’s written consent. Pending the determination and/or settlement of any claim, demand or action which is inconsistent with any of the warranties, representations, covenants or agreements made or assumed by Writer in this Agreement, Publisher shall have the right, at Publisher's election, to withhold payment to Writer of any monies otherwise payable to Writer under this or any other agreement between the parties, and or any of their affiliates in an amount reasonably related to the amount of that claim, demand or action and the reasonably estimated amount of Publisher's costs, expenses or other damages in connection therewith (including, without limitation, legal costs and attorneys' fees). Upon the resolution of any claim, any monies withheld by Publisher as aforesaid may be used by Publisher to satisfy Writer's indemnity obligations hereunder and to the extent that the withheld sums exceed such indemnity obligations they shall be treated as additional Receipts. Publisher shall have the right, at Publisher's election and without limitation for any reason, to withhold and recoup and recover the amount of any and all costs and expenses (including, without limitation, legal costs and reasonable attorneys' fees) which are paid or incurred by Publisher or on Publisher's behalf to defend, respond to, negotiate or prosecute any claim, demand or action which is inconsistent with any of Writer's warranties, representations, covenants or agreements hereunder from any monies payable to Writer hereunder or under any other agreement to which Publisher or Publisher's affiliates are a party. Notwithstanding the forgoing, any amount so withheld shall be released if (and to the extent that) legal action shall not have been commenced with respect thereto in a court of competent jurisdiction within one (1) year following such withholding, it being agreed, however, that Publisher shall have the right to again withhold monies thereafter in the event such claim continues to be asserted, is reasserted or suit is later filed. Writer shall reimburse Publisher, on demand, for any payments made by Publisher at any time with respect to the actual amount of any claim, demand or action to which this indemnity applies. Writer shall have the right at Writer's expense, to participate in the defense of any such claim, demand or action with counsel of Writer's choice. The defense and settlement of that claim, demand or action, however, shall be controlled and determined in Publisher's sole discretion.


This is the clause, usually buried somewhere towards the end of the agreement that nobody wants to deal with but it is hugely important. Most people have some hazy idea of what indemnity means, informed perhaps by the classic film noir “Double Indemnity” rather than Black’s Law Dictionary. Nevertheless, here’s how Blacks’ defines indemnity “ A collateral contract or assurance by which one person engages to secure another against being damnified by the legal consequences of an act or forbearance on the part of one of the parties or some third person. Term pertains to liability for loss shifted from one person held legally responsible to another person”.

In plain English, this means that the indemnifying party assumes the responsibility for any legal consequences caused by their acts or warranties. The problem of course is that in its unmodified, un-negotiated form, the indemnifying party can be responsible for even all unsubstantiated or invalid claims asserted against the indemnified party. As everyone knows, anyone can sue anyone else for anything under the sun, so it is important to try and limit one’s exposure for all the various claims that can arise, especially those that are bogus.

I have always argued from an artist’s perspective that an artist should not be responsible for nuisance claims filed against a record company or a publishing company. At some basic level, those companies should be in a better position to absorb the cost of defending these claims as a cost of doing business. I have been involved in defending against many of these types of nuisance claims and while they are almost always dispensed with, the cost can be staggering.

The negotiation of this section of an agreement is always different and can head off in a multitude of directions. Very often, an artist can limit their liability to claims actually reduced to judgment or settled with their consent. The important part is to know what to ask for.

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.