All Tomorrow's Lawsuits: The Velvet Underground v. Andy Warhol

I am a big admirer of Andy Warhol. I believe his impact on 20th century art and culture is incalculable. I am also a big fan of The Velvet Underground so, of course I was fascinated to discover that the band (actually a partnership comprised solely of Lou Reed and John Cale) had just filed suit against the Andy Warhol Foundation, apparently because the Foundation was seeking to license the famous banana design from the band’s first album to a company that manufactures iPhone and iPad covers.

The complaint in the case is instructive. It reads like a concise history of Warhol and The Velvet Underground. One fascinating tidbit: The band received a $3,000.00 advance from MGM which they split with Warhol. It also spells out a compelling legal challenge. The Velvet Underground assert trademark rights in the banana, although in the 45 years since the fruit first appeared on The Velvet Underground and Nico album , the group never sought to register a federal trademark in the design.

Warhol’s apparent defense is that it has a copyright in the banana. However as The Velvet Underground’s complaint demonstrates fairly conclusively Andy Warhol never asserted a copyright in the work during his lifetime and because it was published in 1967 (eleven years before the implementation of the 1976 Copyright Act) it may well have been injected into the public domain for copyright purposes. The band is seeking a declaratory judgment to this effect.

I was initially skeptical of the band’s trademark claims but the complaint lays out a convincing explication of the band’s use of the mark over the past four decades. Particularly interesting is their 2001 license of the design to Absolut Vodka, a license which was apparently not questioned by Warhol. I also wonder who is licensing all those Velvet Underground t-shirts?

I don’t know that I’ve ever read a case that pitted copyright against trademark in such a unique way. There will most likely be collateral issues. For example, perhaps MGM’s successor may assert some sort of copyright interest in the banana design. Also, what is the status of Warhol’s original artwork? This is certainly going to be an interesting case to watch.

Photographer's Rights

I have written before about the rights of photographers and the difficulty they have in protecting their copyrights. So, it was no surprise to read about a recent lawsuit filed by the heirs of the late rock and roll photographer, Jim Marshall, against a boutique owned by the designer, John Varvatos.

I am a big fan of Jim Marshall’s photography. I have a book of his work in my library. I wish I could re-produce some of his iconic images here (like Johnny Cash shooting the finger at San Quentin Prison), but I can’t because Marshall’s copyrights gave him the exclusive rights to control the public display and distribution of his work.

Varvatos was friend of Marshall’s. In fact, Marshall was supposed to speak at Varvatos’ store the night he died. Varvatos displayed several of Marshall’s photographs in his New York store in tribute to his friend. Apparently, he also made copies and displayed them at all of his stores in the United States, including those located inside of Bloomingdales, now a co-defendant in the suit. Marshall’s estate is seeking statutory damages of up to $150,000.00 for each infringement.

This kind of blatant misuse of someone’s intellectual property seems almost unbelievable in this day and age, but it is a reminder that the intrinsic value of photographer’s work is often severely misunderstood. I had this impressed upon me early in my career by a photographer friend of mine, and I have never forgotten the lesson. Having represented several photographers over the years, I see that it is important to remind the world of their intellectual property rights, especially in this digital age.

It's All Latin to Me

Lawyers have become better at writing in plain English since I began to practice law in the Middle Ages. However, we could all do a better job at explaining certain things. One of the reasons that lawyers write in a certain way is to make sure that the point they are making is completely understood and not subject to interpretation. That’s why lawyers will occasionally use obscure Latin phrases. The other day I prepared a will for a client and she asked what the phrase per stirpes meant; a perfectly valid question.

Per Stirpes is legalese. It technically means a method of dividing up a share of an estate to a group or class of distributees, who take the share that a deceased person would otherwise have been entitled to. In other words, if you intend a share of your estate to go to your brother and he predeceases you AND you want the share that he would have received to go to his children, this is how you achieve that.

However, although there is an important reason to use this term in the document itself, it is equally important to make sure that the client understands what it means.

Next week we’ll discuss nunc pro tunc.

Happy Holidays !

Curb v. Tim McGraw Round One

I have slowly been trying to write a short book about some of the common disputes that arise in the music business. I had just begun work on the chapter concerning recording agreements and I thought to my self, "this topic has been done to death. What else is there to write about?" Then came the news two weeks ago about Tim McGraw's preliminary victory over Curb Records in the Davidson County Chancery Court.

This case has all of the necessary elements of a legal drama – high-powered artist battles even higher-powered label over arcane language in a recording agreement first entered into in 1992.

As I understand it, Curb first sued McGraw claiming that he had not delivered the required number of albums under the agreement, even though he in fact had delivered what he considered to be the final album under the agreement in 2010 (and Curb even released a single from the recordings).McGraw has counterclaimed alleging that Curb's actions (including multiple releases of greatest hits albums) are "a naked attempt to create a perpetual recording contract, forcing Tim McGraw into a repressive environment of infinite duration …".

I am assuming that the hearing held on November 30 concerned Curb's attempt to enforce the injunctive relief provisions of its agreement and to keep McGraw from recording for another label during the course of the litigation. I have reviewed McGraw's answer and counterclaim and have to say that it is one of the most eloquent pleadings I have ever encountered. (here's a link:www.tennessean.com/assets/pdf/DN174765524.PDF). It literally reads like a novel where you follow McGraw's career from 1992 through 2010 as well as a textbook analysis of how the delivery process and recording restrictions in a recording agreement can be manipulated.

I don't know how this will play out but if it goes further it will provide fascinating insight into some of the more esoteric provisions of recording agreements, often ignored during negotiations. It may also show us how some these overlooked provisions might come back to bite both parties.

A Special Place in Hell

I read with visceral disgust an article in last Saturday’s Wall Street Journal about a new specialty of debt collectors, who contact the relatives of deceased people who have died leaving debts, and try to convince them that they have a moral obligation to pay the debt. This is a growing business. One such company advertises its services as “a proven approach that yields high returns at a low risk to the client’s reputation.” Translation: we can get your money without making you look bad for harassing grieving widows and orphans.

A relative is not generally responsible for a decedent’s debts unless they were jointly liable prior to the death (e.g. a joint credit card account or a mortgage). If someone dies leaving a will or dies intestate (without a will) with debts and assets the survivors will have to deal with all of this. This is what the probate process is for. It can be hard enough dealing with probate and dealing with the inevitable collection agencies that refuse to recognize the fact that someone may actually be dead (you would not believe some of the automated letters I have seen). However, to claim that the survivors somehow have a legal or a moral duty to pay these debts out of their own pockets is both reprehensible and in violation of Federal Law. It’s hard enough to deal with the loss of a loved one and to settle their affairs- but to be bullied and lied to during the process is repugnant. There is a special place in Hell for these folks.

Let Us Now Praise Phonoluxe

I love used record stores. My favorite job ever was working at the Great Escape in Nashville where my duties included running the store’s rare record auctions. Accordingly, I have been honored to represent Phonluxe Records since the company’s founding in 1987. The store is run by Mike Smyth, an Englishman who knows more about American music than anyone I know and Jeff Knutson, ably assisted by a dedicated group of music aficionados, who are friendly and lack the whole High Fidelity vibe.

Mike is one of those people who truly understand the consumer side of the record business. When the CD revolution began in earnest in the early 90’s, Mike began buying the vinyl records everyone was so happy to get rid of. Now, having carefully preserved these treasures, he’s happily selling them back to these same people. I imagine that he’s now buying up used CD’s patiently waiting for the day that America’s youth tire of MP3’s.

Earlier this year, the store switched from a traditional 7 days a week schedule to being open only Friday through Sunday. The results appear to be really positive; it somehow emphasizes the special, rewarding experience of shopping at Phonoluxe. I love the fact that I can go in there with a record in mind and leave with something else that I didn’t know I needed until I found it.

Here’s to another 25 rockin’ years.