The Rock and Roll Hall of Fame in Cleveland, Ohio is a nice visit, but for music aficionados looking to explore the business side of rock history, a trip to a New York federal courtroom might be more educational. There, some legends including the Rolling Stones' Keith Richards, Talking Heads' David Byrne, The Who's Pete Townshend and R.E.M.'s Michael Stipe have been popping up in recent months in the middle of massive copyright fight against a website boasting an impressive array of live recordings.
In 2015, the National Music Publishers Association led its members to file suit against William Sagan, who runs Wolfgang’s Vault, boasting what The Wall Street Journal once called "the most important collection of rock memorabilia and recordings ever assembled," valued in excess of $100 million.
Since the lawsuit was filed, Sagan's attorneys at Winston Strawn have attempted various tactics to battle claims Wolfgang’s Vault lacks the requisite licenses to stream an estimated two billion recorded concert performances. One of the first endeavors by Sagan was counterclaiming for defamation based on statements in a press release announcing the lawsuit. That didn't go well, but Sagan's lawyers are now up to something even more provocative.
The defendant is now prying into old agreements in the music business and demanding depositions with the overall goal of poking holes in the claim Wolfgang's lacks copyright authority. One of the main theories that Sagan's side is pursuing is that if musicians retained copyright to their works at the time of performance, and then agreed to a recording of their concerts, the musicians made an implied license for later use of the recordings. Sagan is also exploring issues ranging from possibly faulty copyright registrations to a lack of protest among the artists over the years to support affirmative defenses as well as limit damages in a case potentially worth hundreds of millions of dollars.
Michael Elkin and Erin Ranahan, the attorneys at Winston & Strawn, originally wanted to depose a few dozen rock stars, but after a hearing in December, they relented to five.
But those five aren't in a particularly cooperative mood and have been throwing up objections and motions to quash subpoenas. Most recently, for example, Stipe filed a petition in Georgia federal court to rule his testimony would be irrelevant given a songwriting agreement that transferred rights to an entity doing business as Night Garden Music before R.E.M. had its performances taped in 1983 and 1984.
Similarly, Richards and Byrne have each fought against depositions and submitted documents that presumably go into detail about the financial arrangements they have with publishers.
Although the documents are sealed, various court papers filed in connection with the fights over whether these stars will testify address some of what's come up. For example, the Rolling Stones' complicated history with ABKCO founder Allen Klein has been discussed as well as the various settlements between the band and publisher (which on a side note, might best explain why Mick Jagger couldn't get Donald Trump to stop using his songs). Richards' lawyer has stated that the agreements "conclusively demonstrates that ABKCO has been the owner of the copyrights in the Compositions since before the first Concert at issue in 1973," but defendants still have been demanding the right to test this as well as probe other topics including royalties paid.
There have been other skeletons from the rock closet arising in court papers.
For example, Ranahan wrote in December that "upon a closer investigation into Mr. Townsend's publishing rights, it became clear that Plaintiffs have not produced a copyright registration for any of those works, which makes statutory damages unavailable," though the other side came back with the argument that registration wasn't necessary because Who songs were foreign works.
As for Byrne, who like Stipe and Richards has maintained he properly transferred rights to a music publisher, defense lawyers have wanted to question him among other topics about potentially being the co-author of a "joint work," which they say would leave him free to exploit the copyright. Ranahan also wrote that a look at his co-publishing agreement gave Byrne the rights to license whatever composition he wanted. (Another side note, relevant or not to the case at hand, but it appears from U.S. Copyright Office records that Byrne has filed termination notices with the goal of reclaiming rights to iconic Talking Heads songs within the next two years.)
At a hearing on February 16, U.S. Magistrate Judge Henry Pitman ruled that Richards and Byrne wouldn't be required to appear for a deposition, but that they would have to answer 25 written questions. Stipe's own motion to quash a subpoena is still pending.
The plaintiffs, represented by Barry Slotnick and other attorneys at Loeb & Loeb, are not taking all of this without making a move of their own. On Wednesday, the music publishers asked the judge's permission to add new allegations to their lawsuit over a new website, Wolfgangs.com, launched three months ago that is also streaming audio recordings and video footage.