Co-Writing, Works Made for Hire and Happy Birthday Bob

(collage by Gwil Owen)

 It's Bob Dylan's 80^th birthday, and I wanted to mark the occasion by reviewing the complaint in one of the strangest lawsuits I have seen in some time. 

 Late last year, it was announced that Bob Dylan had sold his catalog (including the writer's share of income) to Universal Music Publishing Group for approximately $300 million, one of the highlights in  the recent frenzy of catalog acquisitions.  Shortly thereafter, on January 20, 2021, Claudia Levy, the widow of songwriter/psychoanalyst/theater director Jacques Levy, filed suit against Dylan and Universal for breach of contract, alleging that the Levy estate was somehow due some part of the proceeds that Dylan received from the sale because of the fact that Levy co-wrote ten songs with Dylan, including the majority of the songs on Desire ("Isis" is a personal favorite).

 

None of that is surprising; contractual disputes occur all the time.  What intrigued me is that Dylan's co-writing arrangement with Levy was a "work made for hire" agreement where Dylan not only owned Levy's share of the copyright, but that for copyright purposes, Levy was Dylan's employee – with no ability to ever recapture his share of the copyright.  Even more surprising is the fact that the contract specified that Levy would receive only 35 percent of the writer’s share of income from the songs, rather than the traditional 50/50 co-writer's share.

 

  The complaint goes on to list a litany of complaints against Dylan and his associates, but I remain most fascinated by the whole work-made-for-hire concept.  It seems so foreign to any traditional notion of co-writing – although the history of the music business is full of examples of artists and performers making "unique" deals with their collaborators – this one is fairly new to me.  Oddly, Dylan's Motion to Dismiss the claim, which was filed in March, refers to the work-made-for-hire arrangement as "standard." Maybe these deals made more sense back in 1975.  I wonder if he had a similar arrangement with Sam Shepard? I will say that I agree with Dylan's attorneys that the complaint is without merit – the contract clearly gave Dylan the right to assign the copyrights and the deal doesn’t disturb Levy’s continued income stream.  It doesn't look as if the court has ruled on the. Motion  yet.  

 

 Anyway, happy birthday, Bob.  We're lucky to be living in the same time as you.  

 

 

 

 

 

The Boss Approves

 I have neglected my little blog for a while now.  It looks like I only posted seven times in 2020.  It's not like I had anything else going on. 

 

 Seriously, this was not intentional.  I have several things I really want to delve into and hope to get them up soon.

 

  However, I did want to mention how cool it is that Bruce Springsteen has his own radio show, From His House To Yours on Sirius XM.  I have been a fan of Springsteen's since before he was the Boss, and I have known since the first time I saw the E Street Band live that he has excellent taste in covers.  So I was thrilled to find out that last November, he played Jeffrey Foskett's version of "Cool and Gone," written by my compadres Bill Lloyd and David Surface (originally recorded by Bill on his Standing on the Shoulders of Giants album).

 

 Then on March 11, 2021, Bruce opened the show with the great Bobby Sutliff and his song "Kings of Flannel" followed a little later by Bobby and Tim Lee's band The Windbreakers doing "Girl from Washington," a song I've had stuck in my head since the first time I heard it.  This was followed a little later by Webb Wilder and his recording "Battle of the Bands".

 

How cool is that? I count all of these guys as clients and friends, and there is something really significant about their music getting acknowledgement from the Boss.  These are all great songs and great artists.  Check them out.

 

 

 

 

 

 

GRATITUDE

 This being Thanksgiving, I see a lot of commentators reflecting on the concept of gratitude, especially in this strange (and let's face it, awful) year.  It seems weird to ponder gratitude while there is so much suffering.  However, I feel it.  My wife and I just celebrated one of those milestones of parenthood when our daughter graduated from college.  She had a rough start to her college career, through no fault of her own, and to see her bounce back and finish strong (cum laude – dad brag) fills me with pride and yes, gratitude.  

 

            I've also been thinking this week about a conversation I recently had with a  client.  She thanked me for some advice I gave her, probably 25 or more years ago, when she was a young songwriter just starting out.  She had been offered a deal with a company I knew to be less than reputable, and I advised her to pass on the offer.  I didn't hear from her for some time after that, but when I started working with her again on some new matters, she reminded me of that first consultation and how she appreciated the counsel.  I was genuinely thrilled to hear that.  Lawyers try hard to make a positive difference in their clients' lives, and when one can actually see tangible proof of that effort and acknowledgement, there's no better feeling.  So my Thanksgiving wish for everyone, to paraphrase writer, Brene Brown, is to "Stop and celebrate one another and our victories … we need to celebrate our accomplishments right now".  I can think of no better way to end 2020.

 

Or to quote Paul McCartney: https://tinyurl.com/y68g4lfz

The Go-Go's Documentary

 I watched  the Go-Go's documentary on Showtime a month or so ago and I have been thinking about it ever since.   I know anecdotally that the film left out a lot.  I have even written about the group's dysfunction before https://tinyurl.com/y4e3p7f4.

Nonetheless this is an intensely watchable film and the early punk footage of the band is fascinating.

 

Ultimately the Go-Go's documentary serves as an unpleasant reminder of the music business as it existed in the 1980s.  I have very little nostalgia for those days.

 

The film is pretty honest in recounting the group’s history.  They ruthlessly fired two early members.  In one case they made their manager fire the bass player (reminiscent of the Beatles making Brian Epstein fire Pete Best).  They the forced their  manager, Ginger Canzoneri (who had shepherded them from the L.A. punk clubs to a No. 1 album) to seek more "experienced" managers to the point where she just resigned.  Finally, original member Jane Wiedlin quit the band rather than being forced to share her publishing with the non-writing members of the group.  Plus, there are drug problems, health problems and three really great albums.

 

I bring all of this up to make a point.  The issue with songwriting is serious and it can break up even the sturdiest group. Wiedlin says in the documentary the  new managers came to the group after they had completed their third album and tried to force them to sign an agreement to split publishing.  This was a huge mistake.  The time to discuss these type of issues is before a band records their first album.  Of course, this is easier said than done.  No group wants to sit in a room and discuss partnership agreements and music publishing splits, but I think it is really critical.  You can trace so many band breakups  back to music publishing disputes.  Lennon and McCartney were wise to cut their bandmates in on the publishing (albeit with minority shares) but songwriting and publishing were among the myriad of issues which helped break up that band.

 

I am glad that the Go-Go’s got past all of that and continue to perform today and I hope that this documentary can serve not only as a testament to a groundbreaking rock band but also serve as a lesson in band dynamics, loyalty and  diplomacy. 

            

Adventures In Dry-Cleaning

 I recently read  about the so called, "pants lawsuit", Pearson v. Chung, in which an administrative law judge sued a dry cleaner for $67, 000,000.00 over allegedly losing a pair of slacks.  The case dragged on for years before Pearson lost both at trial and on appeal.  Before it was all over though the dry cleaner had to close his  business and incurred almost $100,000.00 in legal fees (which were recovered thanks to several fund raisers).  

The case led to the District of Columbia Board of  Professional Responsibility seeking to suspend Pearson's law license for engaging in

frivolous litigation.  

 

Although I was unaware of this infamous case, I have a lot of sympathy for the dry cleaner because it reminded me of one of my favorite clients,  the late Phil Efron owner of Nashville's Douglas Corner Cleaners and Entertainer Wardrobe Services (which was next door to the equally famous Douglas Corner which just closed).  I could write an entire chapter on how I met Phil Efron but when he opened his dry cleaners, we worked out a barter system – I traded legal services for dry cleaning.

 

This led to some interesting adventures.  Phil had been a dry cleaner in Las Vegas and had actually worked for Elvis Presley at one point.  He was the guy who made those scarves that the King threw out to his fans.  At some point, Phil decided to sell replicas of the scarves in various collector's magazines.  I remember his ad ran something like, "We made them for Elvis now we'll make them for you".  Inevitably, Phil received  the cease and desist letter from the Estate of Elvis Presley.  Phil asked me to deal with the estate's lawyer on his behalf.  I researched everything I could about the right of publicity, First Amendment law, etc. and called E.P.'s lawyer.  He was very amiable and polite but after I finished my spiel , he basically said, "We represent Elvis Presley and we will sue your client into the ground…thank you very much.”  Phil stopped selling the scarves, although I know I have one around here somewhere.  

 

Our second case was more successful.  Phil had been sued by a bride to be  who claimed that the dry cleaner had shrunk her wedding dress.  The case went to court.  It didn't help that my former law partner's cousin showed up as a witness for the plaintiff.  However, we had an expert witness, the  head of the Tennessee Association of Dry Cleaners who testified that it is essentially impossible to shrink a garment in only one specific area – in this case the waist.  I wisely resisted the urge to demand that the plaintiff try on the garment.  We won; the case was dismissed. 

 

 I did a lot of other work for Phil and was sorry that he decided to sell the business, but it had taken a toll on him.  I gained a healthy respect for the job these people do and the level of service that they must provide on a daily basis.  I miss Phil. I also miss those freshly ironed shirts.  

Gary Walker

 In the summer of 1980, I decided to take a year off from law school to restore my health and sanity.  I moved back to Nashville with the loose expectation of a job, which promptly fell through; so, I spent the summer doing everything from scraping paint off houses to projecting Don Evans movies at the Parthenon (those were indeed different times).  At one point, I interviewed for a job in the music business only to discover that it involved hawking Pope Paul II picture discs.  Out of desperation, I applied for a job at the Great Escape, which, in its young history, had already become my go-to used record store.  As I recall, the owner, Gary Walker, told me almost immediately that there were no openings.  Yet, somehow, we got onto the subject of buying and selling rare records and advertising in Goldmine magazine.  Weirdly enough, I had been buying and selling records through Goldmine auctions (as well as other publications) since high school, and what I might have lacked in experience I think I made up for in genuine enthusiasm.  Remarkably, I walked out of the store with the best job of my life.  For the next 14 months, I helped put together the store's massive two-page monthly advertisements in Goldmine, meaning I helped select the records, graded them, wrote the listings (thank God I didn't have to type them), kept track of the bids, sent out the winners' letters, and then cleaned, packed and shipped the discs.  My other job responsibilities included sweeping the store every morning and checking the vintage issues ofPlayboy magazine the store sold to make sure the foldouts were intact.  I was in heaven. The store also gave employees a discount and first crack at the used records that came in. That was dangerous. To this day, I marvel at how  many records in my collection still have the tell-tale Great Escape sticker in the upper right hand corner. 

 

But my favorite part of the job was getting to know Gary Walker and his family.  Gary had years of experience in the music business.  I learned much of this while working at the store and much more later – and he knew everybody, so you never knew who might show up in the store.  He had such enthusiasm for his job and the enterprise he was growing (the store eventually expanded to four or five different locations).  His enthusiasm was contagious.  And, as I recall, he never wore a watch. I really enjoyed the time I got to spend around him, his wife Peggy and their children Karen and Greg. I’m still friends with Greg (a guy who knows more obscure music trivia than I’ll ever possibly know) today.  

 

Eventually, I had to leave Nashville again to return to law school, but Gary let me work for him again the following summer while I clerked for a Nashville law firm, and I am proud that years later I got to do some legal work for his record label, Great Escape Records.  When Gary passed away several  weeks ago, I was kind of shocked to read that he was 87 years old.  Chronologically, that made sense, but in my mind, he was much younger. He was someone I was genuinely happy to run into because he was always positive and onto something new and great.  

 

It is hard to find a good definition of the word “mentor”  that doesn’t sound corny but I just saw the term defined as “anyone who is a positive guiding influence on another person’s life”. Gary probably didn’t know this but he was a very positive influence on my life at a time that I needed a positive influence- and I’m sure I’m not the only person who feels this way. 

Lady A v. Lady A

One of my friends, entertainment lawyer Robin Mitchell Joyce, wrote an article for a bar journal probably two  decades ago in which she stated that it was next to impossible to find a good band name that had not already been taken. I think about this all the time and realize that its more true than ever.  This was especially hard in the pre Google era when you had to use expensive search companies to do far flung federal and common law and state searches to try and find out if a particular name was available. Even with the most extreme diligence, one can never be 100% sure that a name is truly available free and clear.

 And now you have the strange case of Lady Antebellum, the country trio who have been active since 2006 but recently decided to shorten their name to LADY A "after much personal reflection, band discussions, prayer and honest conversations with some of our closest black friends and colleagues," according to an article in The New York Times.

 The only real problem with this is that "Lady A" is also the professional name of a Seattle based blues singer whose real name is Anita White and who has used the name for two decades.  It would seem that a quick Google search would have revealed this troubling fact.  But the plot thickens.  A search of the Patent and Trademark Office records  reveals that the band's corporate entity, Lady A Entertainment LLC (which itself was created on August 30, 2010) owns trademark registrations for the "Lady A" mark going back to 2010 and 2013.  In other words, while the Tennessee trio might not have known about Seattle's Lady A, they conceivably had a good faith belief that they could use the name since they had several registered trademarks in the name going back a decade.

 It is not clear what will happen with Lady A and Lady A.  It looks as if after an exchange of angry words, the parties have somehow agreed to co-exist but this does bring to mind the pitfalls of dealing with trademarks in group names.  Back in the dark ages when I was in law school, we learned that it is  possible to have specific geographical limitations to trademarks,  but that seems to be a quaint notion in the Internet age.  The Trademark Office  does allow owners to co-exist with and allow others to use marks for certain limited purposes, so presumably, that is what will happen here.  I don't think that this is a battle that either Lady A or Lady A wish to fight. There don’t seem to be any great options.