Sunday, January 30, 2011

The Watermelon/Antones Tragedy: A Post Mortem Analysis

I represented Watermelon Records for most of the 1990's. I was proud of the artists they championed,including the late great Don Walser. I hated to see the label file for bankruptcy protection back in 1999, although it was inevitable. Although I stayed in touch with the principals of the company, I was not involved in the second bankruptcy or the lawsuit filed by Don Walser's heirs. It was confusing and mildly depressing watching the Walser lawsuit from the sidelines though. I had vivid memories of Don and the great comeback he got to experience late in his life.

The Walser case was tried last spring in Austin. Last week, US Bankruptcy Judge Craig A Gargotta issued a 46 page opinion clearing Watermelon's successors of most of the allegations raised against them in the lawsuit, other than the simple claim of breach of contract.

Austin bankruptcy lawyer Stephen Sather wrote about the case and the whole sad saga and I found his analysis to be the most cogent writing I have seen on the subject. Mr. Sather graciously allowed me to reproduce his original blog, which follows:

Antone's Records: A Tragedy in Three Acts and 46 Pages

Austin prides itself on being the Live Music Capital of the World. While many musicians travel to Austin with stars in their eyes, the reality is that it is difficult to earn a living in the music business, either as an artist or an independent record label. For the past eighteen months Bankruptcy Judge Craig Gargotta has received an extensive education on what can go wrong in relationships between record labels and their artists. This education was on full display in a 46 page opinion he wrote in Walser v. Antone’s Records, et al, Adv. No. 09-1010 (Bankr. W.D. Tex. 1/24/11). You can find the opinion here.

However, Judge Gargotta was not the only one receiving an education. I represented the debtors and the case was a real eye opener for me. This is the story of Antone’s Records, a tragedy in three acts.

Act I: Watermelon Records

During the 1980s and 1990s, Antone’s Records and Watermelon Records were hometown competitors in the music business. Watermelon was founded by Heinz Geissler, a German immigrant. Its catalog focused on Americana music. Antone’s Records was founded by nightclub owner Clifford Antone and focused on blues music. At some point during the 1990s, Dallas investor and music lover James Heldt acquired a majority stake in Antone’s.

Watermelon Records was the first to fall. Watermelon Records filed for chapter 11 relief in 1998. At the time, many of its artists were unhappy with the label. After a contentious three year case involving competing plans and shifting alliances, Watermelon confirmed a plan in which its assets were sold to Texas Clef Entertainment Group, Inc. Texas Clef was an affiliate of Antone’s Records which was formed to make the acquisition.

Few of the artists filed claims in the Watermelon Records bankruptcy case. A group of artists was very active in the case and succeeded in having their records carved out of the sale. The plan of reorganization confusingly provided that artists who filed proofs of claim would be treated as parties to executory contracts and would receive a cure offer. Since most of the artists did not file claims, this provision applied to only a few parties. However, the artists did not receive cure offers. Instead, they received a pro rata share of the funds available to unsecured creditors.

Even though the plan was not followed, none of the parties seemed to take notice. Texas Clef re-released many of the Watermelon titles.

Act II: The Walser Suit

Antone’s, Texas Clef and sister label, Texas Music Group, drew the ire of many of their artists and publishers when they were slow to issue royalty statements and pay royalties.

In 2004, Texas yodeler Don Walser, known as the Pavarotti of the Plains, hired a lawyer and demanded that the label provide him with his royalty statements. After three tries, the label rendered an accurate statement and paid most of the royalties. However, this occurred after the expiration of a deadline to cure defaults. Nonetheless, Mr. Walser accepted the payments. Nothing more occurred until March 2005, when Mr. Walser filed a suit against the label timed to coincide with the South by Southwest Music Festival.

While many of the artists would dispute this, my belief is that the Antone’s labels were guilty not of malice, but failure to keep up with rapidly changing technology. During the 2000s, the sale of music began to shift from cassettes and compact discs to digital downloads. This new distribution channel multiplied the label’s reporting requirements exponentially. Compact discs are sold as a unit containing all the tracks. The record label generally used one domestic distributor and one or more foreign distributors. With digital downloads, consumers could purchase individual tracks or albums. In the early days of digital downloads, there were many competing digital download sites who often provided their reporting in inconsistent formats. It required many man hours to assemble all of this data into a statement. Having downsized its operation to save costs after Mr. Heldt was unwilling to continue subsidizing the labels’ losses, the labels were simply unable to keep up with reporting for over 100 releases. It was not until 2009, after chapter 11 had been filed, that in-house computer wiz Tristan Ader developed an automated database which synthesized the information received into a statement.

Meanwhile, the Walser lawsuit rocked along in Texas state court. The suit metastasized to include six defendants, including the three record labels, James Heldt, Heinz Geissler (now an Antone’s employee) and label president, Randolph Clendenen.

Act III: The Antone’s Bankruptcy

On November 18, 2008, on the eve of trial in the state court action, the three labels filed for chapter 11 relief. Ironically, it was during the bankruptcy case that the labels first began to generate timely statements and make timely royalty payments.

The Walser case was removed to bankruptcy court. The suit remained on hold for a lengthy period while the U.S. District Court considered a Motion to Withdraw Reference.

History repeated itself as competing plans were once again filed. The debtors filed a plan based on payments from cash flow and a new capital contribution from James Heldt. The Official Creditors’ Committee filed a plan proposing to sell the debtor’s assets to a new label for $125,000. At the last moment, the Creditors’ Committee sought to move up the auction from after confirmation to the confirmation hearing itself. An auction was held at the confirmation hearing with James Heldt making the high bid. However, the court rejected his bid and accepted the next highest bid, which came from New West Records. During the bidding process, the sale price doubled from the original offer.

In a mediated settlement, the Debtors, the Official Creditors’ Committee and James Heldt agreed to allow the New West sale to go forward at a slightly higher price with several other concessions. At this point, it became clear that Antone’s would not continue as an independent label. However, there was still the Walser suit to try. This trial was held in bankruptcy court over three days in May 2010. Although Mr. Walser’s estate had filed a proof of claim for $300,000, the estate’s attorney asked for damages of $1 million in closing argument.

On January 24, 2011, the Bankruptcy Court rendered its opinion denying substantially all of the relief requested by the Walser estate.

The Court’s opinion methodically analyzed and rejected the claimant’s theories. Among other findings:

· The Walser estate could not claim the masters embodying his recordings. When a record company pays for the recording of a musical performance, that recording belongs to the record company. The Court found that any claim for rescission of the recording agreement was pre-empted by the Copyright Act and that the Walsers had failed to meet the high standard for imposing a constructive trust under Texas law.

· The record company did not owe a fiduciary duty to the artist. Where Mr. Walser had representation from both an agent and an attorney, he did not rely on the record company to act on his behalf. There was not a relationship of trust and confidence under state law where he affirmatively distrusted the record company. In its ruling, the Court distinguished a case involving Apple Records and the Beatles.

· The record company did not commit fraud when it failed to provide royalty statements in a timely manner. As the Court stated, “No evidence exists that demonstrates actual fraud.”

· The Walsers could not recover damages for emotional distress or punitive damages on a breach of contract claim.

· The Walsers could not pierce the corporate veil to impose liability on the individuals associated with the record labels. Under Texas law, mere failure to observe corporate formalities was not a ground for piercing the corporate veil. On a contract claim, it was necessary to show actual fraud rather than merely constructive fraud to pierce the corporate veil. Where James Heldt had loaned millions of dollars to the company and had never taken a salary, there were no grounds for piercing the corporate veil.

The Court’s opinion is a valuable resource for cases involving constructive trusts, rescission, breach of fiduciary duty and piercing the corporate veil. Many of these issues involve routine Texas state law questions. However, there are so many questions addressed in this opinion that there is something for many people.

In the end, the Walser estate was awarded an unsecured claim for $28,161.41, an amount conceded by the Debtors and which had been tendered prior to bankruptcy, together with pre-judgment interest of $1,025.15, which was the amount the Debtors conceded was owed. The Court also allowed the Walser estate to apply for an award of attorney’s fees, but cautioned that it must segregate out the time spent on relief which was not granted.

This is a case brimming with ironies. The suit which pushed the debtors into bankruptcy was ultimately rebuffed. However, because the artist and publisher creditors did not support the plan proposed by the Debtors, the assets of the Debtors were sold to a new label. Hopefully for the artists, the third time will be the charm.

Friday, January 28, 2011

BMI Live

BMI announced earlier this month that it has created a a new program for performing songwriters, “BMI LIVE,” which allows their writers to register their set list online and be paid the performance royalties for the concert performance, no matter the size of the venue.

The first payment is scheduled for BMI’s June distribution and will cover those performances from July 1, 2010 through December 31, 2010 which are entered before March 30, 2011.

I know that SESAC has had a similar program for some time and I presume ASCAP has something similar in existence or in the works. As revenue streams continue to shift for artists, this is a welcome development and if you are a BMI writer/performer, I urge you not to ignore it.

Thursday, January 27, 2011

The XM Satellite Radio Litigation

I have had a number of songwriters and artists ask me about the proposed settlement in the XM Satellite Radio Copyright Litigation Class Action pending in the United States District Court for the South District of New York.

The lawsuit essentially claimed that by virtue of its involvement with so-called “XM Recording Devices,” XM Radio facilitated copyright infringement. The case was certified as a class action and was recently settled by XM agreeing to pay out approximately $5 million to various owners of sound recordings and musical compositions broadcast on XM between March 30, 2006 and December 6, 2010. Settlement notices and proofs of claim were sent to potential claimants last week. In the packet I reviewed, the attorneys had identified the sound recordings belonging to my client, although other people have told me that the proof of claim forms they received were left blank.

If you think you might have a stake in this agreement and have not received settlement documents, you should contact the settlement administrator at 877-398-1139 or through their website

Clearly there is some amount of money out there and it would be foolish to leave it on the table.

Friday, January 21, 2011

Who Owns Your Status Updates?

Years ago (it was 1994 to be exact), I purchased a book at the Harvard Coop Bookstore, Who Owns Information? by Anne Wells Branscomb. I was determined to digest the contents of the book and become an expert in the then-emerging field of internet privacy. Sadly, I never made it through the book but it still looks impressive sitting on my office bookshelf.

I was reminded of this the other day when a potential client asked me who owns the information she posts on Facebook. I have to admit that is a question I had not given much thought to, but like everyone else, I had heard all sorts of rumors about Facebook and privacy issues. So I did what they taught us in law school. I looked it up. It seems the answer is clearly posted on Facebook’s site:

You own all of the content and information you post on Facebook, and you can control how it is shared through your privacy and application settings. In addition:

1. For content that is covered by intellectual property rights, like photos and videos ("IP content"), you specifically give us the following permission, subject to your privacy and application settings: you grant us a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use any IP content that you post on or in connection with Facebook ("IP License"). This IP License ends when you delete your IP content or your account unless your content has been shared with others, and they have not deleted it.

There is a lot more interesting information in this section under the “Statement of Rights and Responsibilities,” and it is well worth reading. Thus we can be assured that Mark Zuckerberg does not own your vacation photos, “likes” and i-Pod lists. At least for now.

Monday, January 17, 2011

The Man Who Needed a Will

I have spent quite a bit of time over the last few years preaching to people about the need to have a Will. I can think of no better cautionary tale than that of Steig Larsson, the best-selling author of the Millenium Trilogy books.

Larsson died in 2004, before the books were published and became an international phenomenon. Larsson also died without a Will, leaving his companion of thirty years, Eva Gabrielsson, nothing. By Swedish law, his Estate went to his next of kin, his brother and father, from whom he was reportedly estranged.

I am pretty sure Larsson did not plan to die at 50. It is also unfair to speculate as to what his intent would have been for his Estate (which of course had not been fully realized at the time of his death). However, just like the sad case of Steve McNair, this just seems plain irresponsible, especially for a man whose real life career was reportedly as dangerous as that of his journalist protagonist ( and who, reportedly smoked three packs of cigarettes a day). I really hate hearing stories like this.

Sunday, January 9, 2011

Let Us Now Praise Webb Wilder

I am happy to share the news that my great friend and long time client Webb Wilder is going to be inducted into the Mississippi Musicians Hall of Fame next Tuesday January 18th. This honor puts Webb in the company of such notables as Jerry Lee Lewis, Elvis Presley, Mose Allison, Tammy Wynette, Bo Diddley and of course, his aunt Lillian McMurry.

I've wanted to post something about Webb for sometime just because, in all honesty, he is a beacon of rock and roll. The music that he and his cohorts make, defies categorization (other than perhaps the term "swampadelic") and never fails to inspire me or lift my spirits. Webb also serves as a great example of how to age gracefully in this business while still delivering the goods. After 20+ years of albums and movies it is gratifying to see the last of the full grown men get the recognition that he deserves from his home state.

Friday, January 7, 2011

Kickstarter: The New Patronage Model

A few weeks ago the manager of my office building asked if I could please leave work early one evening because a production company would be filming on my floor. I was happy to have an excuse to leave early, so I readily obliged.

The next day I was pleasantly surprised to see Steve Taylor filming with a crew on my floor. I don’t know Steve all that well, but I know of him as a sort of renaissance guy: musician (he was an amazing front-man in the band Chagall Guevera), writer, record company exec, producer, video director, and now apparently filmmaker.

I later learned that the film Steve was making is an adaptation of Donald Miller’s book Blue Like Jazz. I just read an article in the Nashville Scene about the financing of the film.

And here is where it gets interesting. Apparently the original funding for the film fell through and the producers turned to the online service Kickstarter to raise money for the production. According to the article, they raised $345,992 in one month making it “the largest crowd funded creative project in American history,” according to the Scene.

I have heard of other amazing stories about Kickstarter. Coincidentally, I have a client who raised $14,000 to record an album in one month through approximately 155 donors (that averages around $121 each). Kickstarter keeps 10% of the money raised (5% for itself and 5% for Amazon for handling the transaction).

I have always been wary of most patronage type arrangements but this seems to be emerging as a significant new model. Any artist with a devoted fan base can look to their fans for actual support. This is a very direct way for an artist to connect with their audience and is yet another way that technology is supporting the independent artist.