Coming Attractions

I was recently in Havana, Cuba. A friend pointed out this poster for an upcoming gig by the Baquestri-Bois. I started thinking about all of the trademark implications until I remembered, oh yeah...you're in Cuba.

Heinz Geissler

I wanted to write something about my friend Heinz Geissler, who passed away in January.  I first met Heinz through Townes and Jeanene Van Zandt and soon began helping him with a small record company that he and John Kunz ran in Austin, Texas:  Watermelon Records.  Within a few years I was handling agreements for an amazing roster of artists ranging from Alejandro Escovedo, Julian Dawson, the Austin Lounge Lizards and the Asylum Street Spankers,  Omar and the Howlers, the Derailers, Bob Neuwirth, Doug Sahm, the great Don Walser, Steve Young and many, many more.  I also worked on a deal to get Watermelon to release two of my favorite Webb Wilder album "Town and Country" and "Acres of Suede". Heinz and John built a great record company.

Working with Watermelon I had  an opportunity to learn the inner workings of independent labels – the good and the bad.  I got to work on a multifaceted distribution agreement with a major label  (while in Russia adopting my daughter). I enjoyed some of the best meals of my life in Austin . I also learned more than I ever wanted to know about bankruptcy law.   

At the end of the day, I just remember how much I enjoyed my nearly daily phone calls with Heinz.  We would deal with whatever business was going on that day and then invariably start talking about music – and Heinz was the world's biggest fan – from talking about the Stones (he loved the Mick Taylor era) Paul Kossoff, Neil Young bootlegs, Jackson Browne – the guy was an authority.  To this day I remember him saying in his thick German accent "that's really f...ing cool". More than anything, I will miss his enthusiasm.

Attack of the Holograms

"When Maria Callas appeared on stage . . . on Sunday night, she looked a little pale, a little spectral."  That is how Anthony Tommasin (writing in the New York Times) described witnessing a hologram performance of the diva at Lincoln Center.  The real Callas has been dead since 1977.  It used to be that the only hologram we had to contend with was Princess Leia seeking help from Obi-Wan Kenobi.  There is now a new phenomena to utilize this technology to create concert performances of deceased stars.  To date there have been hologram performances from Tupac Shakur, Michael Jackson, Ronnie James Dio and now Maria Callas.  Mojo reports that a hologram Roy Orbison is about to tour the United Kingdom and that the Frank Zappa estate is about to send Frank out on tour with some of his old band members performing live.

 

            I find this really creepy for the most part.  It is interesting that Tommasin does not completely dismiss the Callas experience stating "it was amazing yet also absurd, strangely captivating, yet also gimmicky and ridiculous," going on to state that opera fans tend to dwell in the past thus indicating that this sort of performance might appeal to them more than other audiences.  My worry is that as our contemporary heroes age and die off will the hologram industry rise to fill the void.  Could Paul McCartney be preparing a hologram version of himself to send out on tour?   - - - Probably.  Will the hologram develop artificial intelligence (wait that's another blog).

            All of this made me begin to wonder about the rights that artists traditionally give up when signing record contracts.  Usually there is some limited assignment of name, image and likeness rights and the rights to control video recordings made during the term but could this be considered to be a grant of rights that would encompass holographic images of the artist long after the term (and the artist) expires?  Obviously the artists who have leverage don't need to be concerned with these boilerplate clauses necessarily but this is something that is certainly going to be on my radar going forward.

Steely Dan: Can't Buy/Sell a Thrill

In my last blog post, I wrote about the sad developments which led to Donald Everly being in litigation with the Estate of his late brother Phil Everly.  No less depressing is the recent California lawsuit:  Steely Dan, Inc. and Donald Fagen v. the Estate of Walter Becker.  This case filed in November 2017 is interesting because it shows the complex interworkings of corporate law, probate law and band dynamics. 

All musical groups function as a business entity and music lawyers are always trying to get their clients to recognize this and take steps to organize themselves properly, be it as a partnership, corporation or limited liability company.  Apparently the original members of Steely Dan recognized this back in 1972 when they signed their first record contract.  At that time they formed a corporation, Steely Dan, Inc. with five shareholders (Fagan, Becker, James Hodder, Dennis Dias and Jeff Baxter).  The individual shareholders also entered into a Buy/Sell agreement which provided that upon the death or termination of the corporation's employment of a shareholder, the corporation would be entitled to purchase that shareholder's shares of stock in the corporation at book value (as opposed to fair market value)/  The Buy/Sell agreement is a widely used tool in closely-held business corporations used to maintain control amongst the original shareholders and avoid outsiders becoming shareholders. It allows the original shareholders the ability to purchase the interests from the estate of a deceased or terminated shareholder so that the business can continue without having to necessarily deal with relatives of former members.  The Buy/Sell agreement is a widely used tool for musical groups because it lays out a procedure to follow when a band member quits the band.  Departures can be contentious and it is helpful to have a procedure in place to navigate the split.  Clearly the Steely Dan Buy/Sell agreement was fairly successful in that it stayed in place for 45 years and weathered all of the various personnel changes resulting in  Becker and Fagen being the only remaining original members.  But few groups become as successful as Steely Dan.  The graver issue (but one which will sadly become more commonplace) is that more and more band members of these iconic bands of the 1960s and 1970s will die – triggering various corporate mechanisms designed to protect the entities but not necessarily designed to deal with dead rock stars and their estates. 

Daniel Scott,  writing in Forbes pointed out the problems with using the traditional corporate devices to deal with the unique situations of musical groups and their "legacy plans".  He states: 

While this may work for more traditional businesses, Buy/Sell agreements do not work well in a band setting.  First there is the issue of value.  Ordinarily a Buy/Sell agreement applies a formula to determine the fair market value of the deceased owner's interests.  The problem is, valuing what a band is worth is hardly a science and has been the subject of much debate in recent years, particularly when it comes to the value of rights such as likeness and image (as opposed to just sound recordings and publishing.)  This could result in a significant undervaluing of the deceased member's interests. 

Purely as an equitable  matter,  it would seem that Becker’s estate  would be entitled to something for the 45 years of work he put into the band (that is, in addition to record royalties and publishing royalties which we assume are not part of this agreement. On the other  hand, there was and is a good reason to create these kind of documents to deal with the mercurial natures of rock and roll bands.

I doubt that this case will go all the way to trial but I bet that one major result of the dispute will be to cause those who advise musical groups, especially those with long track records, to reevaluate their governing documents.