Collaborations and Joint Works

The other day, I had a potential client ask me an intriguing question. He was a writer/musician and wanted to know how to protect his work when he was collaborating with other people. More specifically, he wanted to know if he was creating work that was capable of copyright protection when he was recording music in the studio with other people. Essentially, he was adding keyboard parts to someone else’s work.

Note that this was not the stereotypical Nashville situation of two songwriters sitting down to write a song. The law is fairly clear that in that instance, they are creating a joint work (defined by the Copyright Act as “a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.”) But even that situation is not always clear cut. I was once involved in a dispute between three writers where there was some disagreement over whether they had each written a third of the song or whether the third writer’s contribution was somehow less than that of the other two.

My friend’s question concerned the more tricky area of studio collaborations.

I think that industry custom is pretty clear with respect to studio musicians who are asked to lend their expertise to creating a finished product. But what about people who engage in less well-defined collaborative processes? I am constantly reminded of the English case of Matthew Fisher, Procol Harem’s organist, who convinced English Court that he should be entitled to 40% of the total share of the copyright to “Whiter Shade of Pale” because he contributed the seminal Bach-inspired organ intro. The case was reversed on appeal, but apparently Fisher has been granted leave to appeal again. Johnnie Johnson, Chuck Berry’s long-time piano player and Johnny Cash’s cohorts from the Tennessee Three were less successful in their attempts to convince courts of their authorship rights. Even today I read about one of the session players on “Electric Ladyland” grousing that he should have received royalties on one of that album’s ethereal jams (recorded 41 years ago).

I think the question comes down to intent. Did the parties intend to create a joint work? That can be difficult to prove in the absence on tangible evidence.

Several years ago, a lawyer who specialized in hip-hop, told me that he had created a short one-page document for his clients and their collaborators to use in the studio to memorialize their mutual understanding of their respective authorship shares at the time of creation. I didn’t see the need for such a document at the time but I certainly do now (especially when nearly every hip hop song on the charts is a collaboration of some sort). Whether the issue concerns a band splitting publishing or a studio collaborator adding an original part to a composition, these issues need to be determined as close to the time of creation as possible and not in a courtroom decades after the fact.

Oliver Wendell Holmes said it...

“We equally believed that those who stood against us held just as sacred convictions that were the opposite of ours and we respected them as every man with a heart must respect those who give all for their belief”

--Oliver Wendell Holmes

I finally finished watching Ken Burns' stunning documentary of the Civil War. I was struck by this quote from Oliver Wendell Holmes which prefaced the 8th episode of the series. This is something that we should try to remember in litigation, mediation and politics.

Let Us Now Praise Randy Piper

I am an inveterate collector of records and other things. So, I am always fascinated by stories of other collectors and their misadventures. I was horrified to learn the story of Randy Piper, whose rare collection of Jack Daniels whiskey and memorabilia was confiscated a year or so ago by Tennessee Alcohol Commission Agents who claimed that Piper was selling liquor without a license because he bought sold and traded Jack Daniels memorabilia with other collectors. This absurd abuse and waste of state power was apparently settled out of court by Piper agreeing to forfeit some of his collection to the state and paying a fine. An article in the January 21 issue of the Tennessean also mentioned that Piper had incurred attorney’s fees of $40,000.00

I can’t really think of an analogy for record collectors; other than in England where it is apparently illegal to buy and sell transcriptions discs form the BBC. I know that years ago there used to be a rumor that records companies could have someone arrested for possessing promo copies of an album (this always begged the question- where do you think promo copies come from?).

At the end of the day, this seems like too narrow a topic to suggest changing state law to protect collectors like Piper and other fans of 100 year old whiskey bottles; on the other hand, we are talking about Jack Daniels.

Vive La Revolution or Something

There was a great quote in the Wall Street Journal’s December 29^th edition in an article about Bon Iver, written by Shelly Banjo and Kelly K. Spors. “The internet has been like the French Revolution for the music business,” says Panos Panay, founder and CEO of Sonicbids. “The aristocracy ‘has faded’ as the cost of distribution, production and even getting connected has come down. Now, he adds, anyone with a niche and devoted fans can make a living”.

This was from an article about how the artist Bon Iver secured a record deal and an international following presumably from posting his home made recordings on his Myspace page, then being reviewed by online tastemakers like Pitchfork media and Brooklyn Vegan.com. If you read the article, it seems like he did all of this without venturing too far from his secluded cabin. I am not that naive but this is sort of the gospel I preach to any artist with any sort of a track record: stop looking for that mystical connection with a record company (you know, the one with unlimited funding that understands perfectly how to market you and your music). Your time and capital is better spent trying to figure out how to market your music directly to your fans.

The problem I see in this whole picture is the plight of the new artist. I think that the internet based niche marketing approach can work exceptionally well for that artist that has a foothold but what about someone who has never been heard? From the Wall Street Journal article, it appears that these folks have to be vetted by the aforementioned tastemakers. (There is something to this whole viral marketing thing; Brooklyn Vegan even made me aware of a brand new Neil Young video and song on You Tube that I probably would have never known about otherwise). But how does one get on that radar screen, without being obnoxious or too blatantly obvious?

That’s the question.

Making New Year's Resolutions on January 29

I have always had an attraction/repulsion relationship with New Years’ resolutions-while I am drawn to the concept of change and renewal, I hate the stereotypical pattern of adopting resolutions in January just to abandon them by February. Think of all the people you see on the treadmills at the YMCA during the first week of January and how they seem to fade away by the Super Bowl.

However, a client called me last week, energized by the New Year (and perhaps the new administration). He wanted to get his will finalized, his business interests and intellectual property interests organized and in general take care of a lot of the small details that had been left hanging for some time. I was impressed and somewhat inspired by this and began my own list of dreaded tasks that I had been putting off for some time. January and February are probably great months to organize one’s professional and personal life (“to get your life in order” as one of my old English professors used to say).

If you have a will (and you should have a will) you should see that it’s up to date. If you own a corporation or a limited liability company, you should make sure that your organizational documents are up to date. If you own copyrights or trademarks, you should review their relevant dates. If you’re like me you should also hit the Y, go to bed earlier eat more vegetables, etc. but those are different resolutions for a different post.

I Never Trusted Those Bowie Bonds

I enjoyed this article, from Rolling Stone's online site, even if it's not true. I never understood how those Bowie bonds could be a good investment, as much as I like "The Man Who Sold the World".

Theory or fantasy? David Bowie is to blame for the recession and the current credit crunch, the U.K. press reports Jan 13, 2009. According to a BBC Today host, it was the Thin White Duke, Ziggy Stardust, who opened the flood gates for the current economic problems, all thanks to his "Bowie Bonds." Back in 1997, Bowie issued "Bowie Bonds" as a way of getting his royalty money up front. He sold bonds of his future royalties to his fans for an immediate sum of money, figuring they'd be more patient about waiting for the royalties, plus it'd give them a stake in Bowie's catalog.

Economically, the term for this action is "securitization." The article speculates that banks were inspired by Bowie's foresight and started to do the same thing, except with mortgages instead of Hunky Dory. The plan was so successful for banks that they lowered the bar on who got loans, figuring a deadbeat would be the problem of whoever scooped up the security, or the bundle of mortgages. Repeat this and multiply it by several thousand and you're faced with one of the main reasons for the current recession.

We asked a friend of ours who works in real estate - and knows a lot more about these economic matters than we do - and he insists that "securitization" was taking place on Wall Street way before David Bowie masterminded his supposed scheme to cause a worldwide recession. In fact, the practice dates back to the 1970s, when "the U.S. Department of Housing and Urban Development created the transaction using a mortgage-backed security."

In short, our Wall Street source says, "There is no chance in hell that David Bowie inspired banks to package loans into securities, have rating agencies rate them AAA blindly and sell them off to high leverage hedge funds." We don't know what any of that means, but it takes the blame off Bowie's shoulders. - Rolling Stone.

Butch Baldassari

I wanted to write something about my client Butch Baldassari who passed away Saturday January 10, after a long illness. Butch was one of the finest musicians I ever met, a mandolin virtuoso. He took the instrument into all sorts of new territories from bluegrass to jazz to rock to classical music. More importantly, I was always impressed by his deep knowledge of the history of the instrument and its place in the development of American music and culture. He knew about the unpublished works of Bill Monroe, which he wanted to record before he died, as well as the history of mandolin orchestras in America. This knowledge led to his forming the groundbreaking Nashville Mandolin Ensemble, which showcased the breadth of the instrument from the turn of the last century through the works of Charles Mingus and The Beatles. In addition to the success of the Nashville Mandolin Ensemble,, Butch also recorded “Evergreen-Mandolin Music for Christmas,” which has become a favorite in many people’s homes and I think ranks right up there with John Fahey’s Christmas albums.

Butch was also an incredibly cool and decent human being. I always thought he spoke more like a jazz guy than a bluegrass player. When I read his obituary in Sunday’s paper I learned that Butch had been a croupier in Las Vegas before becoming a professional musician and this made perfect sense. He is going to be missed.