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Author Topic: Indie Label Signing Practices OR Oral Contracts Are Bad But Oral Sex Is Still OK  (Read 6983 times)

pilsner

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Following up on this excellent article that Tommy linked in another thread, I was stunned to learn that not just one but a number of indie labels have been satisfied with oral agreements managing ownership of copyright and division of future sales profit.  Any self-respecting lawyer pretty much anywhere in the world will tell you that an oral agreement concerning intellectual property rights is an awful idea -- on the other hand it seems almost a matter of pride that the community is so tight no one will ever sue.  Completely missing, as alluded to in the article, the issue of what happens when the musicians themselves pass away and the beneficiaries of their estates sue, ignorant or uncaring what comity existed between the deceased and their labels.  Perhaps the salient point here is that these were kids at the beginnings of their careers -- nevertheless not memorializing an agreement in writing down the road when it is clearly worth something is... shocking.

Anyway, this thread is about casual signing practices in independent labels in general, and the Butthole Surfers/Touch & Go debacle in particular (assuming the depths of that subject weren't plumbed in that other thread). 
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Melodic

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i'd take a blowjob as an oral agreement in pretty much any legal matter.
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a pack of wolves

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Completely missing, as alluded to in the article, the issue of what happens when the musicians themselves pass away and the beneficiaries of their estates sue, ignorant or uncaring what comity existed between the deceased and their labels.

An artist's releases still being financially viable even after they're dead is extremely rare. The chances of those records still being viable to keep in print and the death happening before the label has recouped its costs and the albums are perceived by relatives to be worth enough to take the label to court over them in the hope of making more money are so small that it really isn't worth worrying about.

on the other hand it seems almost a matter of pride that the community is so tight no one will ever sue.

It's absolutely a matter of pride that people will work hard and do the right thing without needing to be forced into it by law or even monetary incentive. Personally, I think that's unequivocally a good thing, and it works without lawyers policing people's relationships. It's rather telling that the bands who are signed to major labels with contracts drawn up by lawyers are the ones that are the most exploited.
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Does it work though? It might work fine while the people are a part of this community but after a sudden falling out or a gradual loss of faith what keeps everyone honest is gone. Written agreements are also not about policing relationships, they're about policing property. Putting it in writing doesn't mean you distrust the person, if anything it's a symbol of how strong your agreement is.

Oh and maybe it's the mathematician in me but something being unlikely does not mean you should ignore it. It is worth worrying about because it can happen and it will happen if your sample space is big enough. It only needs to happen once for it to really screw someone over.
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tricia kidd

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i assume most of us are familiar with "scenes", and know that the definition of "scene" is, among other things, "breeding ground for drama, infighting, backstabbing and stories with two sides".

usually this manifests in people writing songs about each other, or talking shit in interviews.  when Ministry screwed over Gibby Haynes, all the Surfers did is write a song about it.  Jim Thirlwell has had much to say about Lydia Lunch, both obliquely and in interviews.  Tricky once called Bjork a "psychic vampire".  and who can forget this shirt?



this has been true in scenes for as long as scenes have existed.  in light of this, i do think it is naive for anyone to believe an informal "handshake agreement" will be peachy keen forever.  reading that article, i simply can't take a side.  both parties clearly made mistakes.  Gibby should have just called Rusk, but Rusk should not have ignored the Surfers' manager's calls on the assumption that either Gibby would eventually call or the situation would just go away.

look at what happened to Factory Records with the Happy Mondays.
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pilsner

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An artist's releases still being financially viable even after they're dead is extremely rare. The chances of those records still being viable to keep in print and the death happening before the label has recouped its costs and the albums are perceived by relatives to be worth enough to take the label to court over them in the hope of making more money are so small that it really isn't worth worrying about.

...

It's absolutely a matter of pride that people will work hard and do the right thing without needing to be forced into it by law or even monetary incentive. Personally, I think that's unequivocally a good thing, and it works without lawyers policing people's relationships. It's rather telling that the bands who are signed to major labels with contracts drawn up by lawyers are the ones that are the most exploited.

Extremely rare is a gross overstatement given that we are talking about essentially every band signed with a label which was selling enough records to justify pressing them and had a member die young.  Why would you even make such a statement? Do you have personal experience with the recording industry such that you have a grasp of how often signed artists die, or have you done a personal survey in your free time perhaps?  If so would you care to share the results?  It sounds like you are making things up for the sake of an argument.

In the absence of a written agreement assigning the copyright (the situation under discussion), in the United States and Canada, the copyright for performance of the song will belong to the writer of the song, whereas the copyright for the recording of the song will belong all members of the band.  Ah, but what if one of the members of the band dies?  What happens to royalties of the song -- are they to be split among each member of the band with the deceased member getting an equal share via their beneficiary?  Partnership law, which in likelihood none of the musicians will have any idea about, will decide these issues if they are not explicitly decided through an agreement, and given the complexities and modalities of the situation, not to mention the fact that it deals with copyright, that agreement has to be written.  Hence websites like this one.  Now of course, a Band Partnership Agreement isn't a recording contract, but they do cover a lot of the same ground.

The idea that "lawyers would police people's relationships" once a written agreement is signed is unfortunate, particularly because the converse is closer to the truth.  When a right, say the right to a portion of the royalties of a recording in perpetuity, is clearly defined in a written contract, it is worth a lot more than a right that is hazily defined in an oral agreement, lawyers or no lawyers.  Artists who decline to delineate their rights to their own music with written agreements therefore impoverish themselves in two ways.  First, should they ever want to sell their copyright, it will be worth a lot more if there is a document rendering explicit exactly what portion of the proceeds that copyright amounts to.  This is true even if neither side ever sues.  It's the difference between selling a car you have clear title to, and selling a car you claim to have been given by your uncle to a guy with scrap yard dogs.

Second, failing to ratify a written agreement creates ambiguities which are essentially cracks through which the lawyers (who are rats in this metaphor) come in and make the transaction exponentially more expensive.  As a general rule, if rights are clearly defined, even if one side sues the situation can usually be settled quickly because it is clear who is entitled to what.  Instead, lawyers get wealthy off of situations exactly like the one in T&G v. Butthole Surfers, where there is a ton of ambiguity, one side acts unilaterally, and next thing you know you've gone through two trials and your Federal Court of Appeals case has set new precedent.  By that point, you've spent upwards of $100k in legal fees.  This is a situation most people want to avoid.
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Ptommydski

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Arguably the two biggest labels to use the handshake agreement are Touch & Go and Dischord and only on one occasion did a band have the audacity to try to renege on a deal with either label, which was why it was considered so offensive to anybody who holds those labels in high regard.

No offence to anybody likely to post in this thread but the desire to create, manufacture and distribute records in a fair, honest way was born of a need to act in a way which was completely unlike the big businesses/major labels. The idea was to keep out all of this legalese and assume everybody would hold up their end of the deal on the basis that they understood and believed in the need for honesty and autonomy in independent music. An overwhelming majority of those who made deals like this understood that and wouldn't think to go back on their own word. Sure, it would be best practices to plug all the gaps which could be exploited given existing laws but that would be the antithesis of everything said labels stood for. By design, they have to cut out the complicated contractual issues or they stand to be placed in situations whereby they would resemble the very organs they were trying to surpass in terms of ethical business practices. I accept that it's an ambiguous system which is rife with potential legal issues but that's essentially the way it has to be. The one occasion where it didn't work shouldn't override the thousands of occasions in which it did.

I can't really put it better than Ian Mackaye (co-owner of Dischord) did -

Quote from: Ian Mackaye
"Conceptually [the Copyright Act] is a good law," says MacKaye. "It happens that in this perverse situation it was used against something that's right. It doesn't surprise me. Courts don't understand this--it's outside of their domain. Courts are the domain of lawyers. If you have an oral contract, lawyers don't get paid. It's kind of perfect that a court would be offended by that."

So yeah, it does seem ridiculous by most people's standards but that's what made and makes these labels so incredible. That's why they stand out against the majors/less than honest smaller labels and why I'll always support them as long as they continue to exist. They took an idealistic, seemingly naive set up and somehow made it work against all logical thinking.
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tricia kidd

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as i understand it the point of the informal, handshake agreement is that it can be cancelled by either party when they become dissatisfied with it, without having to resort to lawyers.

according to the article:

"The legal battle started officially in December 1995 when the Buttholes sent Rusk a letter demanding that their share of the net profit be increased to 80 percent. When Rusk refused their proposal in writing, they sent him another letter demanding that he stop selling their records and give back the master tapes. When Rusk again refused, the Buttholes sued him and Touch and Go"

in what part of this battle is it supposed to be clear that Rusk had the right to refuse to honor the band's wishes to have their intellectual property returned to them?  it seems a bit odd that someone would assume they have the right to own a band's property in perpetuity without a formal, clear agreement that this was the case.
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Ptommydski

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in what part of this battle is it supposed to be clear that Rusk had the right to refuse to honor the band's wishes to have their intellectual property returned to them?  it seems a bit odd that someone would assume they have the right to own a band's property in perpetuity without a formal, clear agreement that this was the case.

It's already on the record in the other thread that you don't understand this and I'm very glad that you don't. Hopefully this will keep you and your kind away from Touch & Go and indeed any label who works using their system. That's exactly how it should be.

Given your other posts and what we can glean from them about you as an individual, it makes perfect sense that you would side with the BH Surfers on this matter. Absolutely perfect sense. Since this is now assured, we can happily assume this will always be the case.
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tricia kidd

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i'm not siding with the Surfers or Touch and Go.  i wasn't there when the initial agreement was made 25 years ago, and given that nothing was put into writing, it's entirely possible that the Surfers, Rusk, or both have incomplete or distorted memories of what their agreement was.

i still don't know why it is in keeping with the ethics of this community for a record label to refuse to surrender a band's master tapes to them when asked.  keeping intellectual property against someone's wishes is what major labels with lawyers do - this has happened to several bands, who recorded albums that the label refused to release, but also refused to surrender the rights to, leading to an album that the people who want to release it can't, and the people who can release it won't.

i thought you agreed to be civil if people were civil to you, Ptommy?  your last post was not civil.  who exactly are "me and my kind"?  what is "my kind"?  the kind who believe that an artist has the right to own their work?  i was trying to post in this thread in a neutral way, as Inlander requested.  let's not go down this road again, because i know for a fact that nobody likes reading either of our posts when the discussion starts going this way.  and this time, you started it down that path.  this thread was supposed to be a fresh start.
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"A new command I give you: Love one another. As I have loved you, so you must love one another. By this all men will know that you are my disciples, if you love one another."

Ptommydski

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That was perfectly civil and it means exactly what it says.

If you can't see why in this situation Touch & Go were screwed by the BH Surfers, that is absolutely an indicator that you don't understand the mindset which allows labels like Touch & Go and Dischord to exist. That is fine, most people don't. We can keep going over this or we can just accept that and move on. I agree that you don't understand it, it makes perfect sense that you don't. We are in concurrence, I have no issue with that because it's self-evident.

Consider this point to be a line in the sand. In this particular instance, you're on one side and I'm on the other. I'm not going to bullshit anyone by saying I think my side is any better than yours but the distinction is there and personally, I regard it to be an important one. You like your side, I like mine. I have no problem with this situation.
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tricia kidd

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If you can't see why in this situation Touch & Go were screwed by the BH Surfers, that is absolutely an indicator that you don't understand the mindset which allows labels like Touch & Go and Dischord to exist.

i do understand the mindset, and i agree that it's obvious that it works in almost every instance for labels like that.  neither i nor you know all the facts and persons involved, and it's because of that that i don't want to make a definitive statement that the Surfers "screwed" T&G.  i agree they did not do things in an optimal fashion.  i agree that there were repercussions.

the only thing i'm unclear on is why Rusk thought it appropriate to refuse to surrender the master tapes to the Surfers and stop releasing their records.  i would appreciate it if you would explain it to me in the most simple and complete way possible - why didn't Rusk simply surrender the master tapes before lawyers even became involved?  i can only see two arguments: an ethical one, that since his label paid for the recording, he is entitled to keep the tapes even after the recording costs have been recouped.  i don't agree with that.  the other argument i can see is greed - he wanted to continue making money off the sales of those albums.  i don't agree with that, either.

if there is some other reason he wouldn't comply with the band's wishes, i'd be curious to know what it is.

edit: in very simple terms: someone has to own the master tapes.  why should it be the record label and not the musicians?
« Last Edit: 18 Feb 2010, 09:45 by tricia kidd »
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a pack of wolves

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Extremely rare is a gross overstatement given that we are talking about essentially every band signed with a label which was selling enough records to justify pressing them and had a member die young.  Why would you even make such a statement? Do you have personal experience with the recording industry such that you have a grasp of how often signed artists die, or have you done a personal survey in your free time perhaps?  If so would you care to share the results?  It sounds like you are making things up for the sake of an argument.

Think about how few independent artists actually make any money, or even just enough to break even given the costs of being in a band let alone enough money from their back catalogue for it to be worthwhile anyone disputing royalties (hardly any, proportionally speaking). Then think about how most independent bands are younger than the population average, and the difficulties of someone with a life-threatening medical condition being in a hard-touring band (almost the only kind that make money) so that's reducing the number of deaths you'll see. Now consider the unlikelihood of an artist still being profitable when they're no longer around to promote their work (death only helps sales if you were already big enough for your death to be widely reported). Finally, consider how unlikely it is for all of these things to happen and for someone to think they're being ripped off by their label so badly they decide to take legal action (only a small number of independent label deals end up in this kind of dispute).

So you could worry about all these things happening and how to safeguard your possible future monetary interests, which can result in you shooting yourself in the foot. Or you could focus on the important questions like "will it be ready for the tour so we've got something to sell", "can you help us out with van hire" and "can we get some in coloured vinyl?"

Of course, this could easily be skewed by my perspective since I'm a strict DIY guy and don't have any personal involvement with the pro end of independent music (the kind where you'll see contracts) except as a consumer. Nevertheless, I've seen the DIY ethic work far more often than fail and often with people digging into their own pockets to pay bands so that they'll live up to their word.
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Ptommydski

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i do understand the mindset

It's weird how everything about your posts suggests that you don't then.

Literally the only mistake that Corey Rusk made was thinking that the BH Surfer's word counted for shit.
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tricia kidd

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i do understand the mindset

It's weird how everything about your posts suggests that you don't then.

then perhaps you could help me to understand by answering my questions.  or at least simply answering the question: why did Rusk feel he had the right to own the master tapes for albums that had already recouped their cost when the Surfers wanted them?
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pilsner

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Quote from: Ian Mackaye
"Conceptually [the Copyright Act] is a good law," says MacKaye. "It happens that in this perverse situation it was used against something that's right. It doesn't surprise me. Courts don't understand this--it's outside of their domain. Courts are the domain of lawyers. If you have an oral contract, lawyers don't get paid. It's kind of perfect that a court would be offended by that."

So yeah, it does seem ridiculous by most people's standards but that's what made and makes these labels so incredible. That's why they stand out against the majors/less than honest smaller labels and why I'll always support them as long as they continue to exist. They took an idealistic, seemingly naive set up and somehow made it work against all logical thinking.

This more or less makes the point I was attempting to make.  When MacKaye says "If you have an oral contract, lawyers don't get paid. It's kind of perfect that a court would be offended by that," he is not only wrong, he is the diametric opposite of right.  This is because a number of facts (yes, facts) about the legal system that I should have perhaps made explicit at the outset.

-- An oral/handshake agreement is still legally binding with regard to some intellectual property rights and most contractual rights.  The only thing keeping an agreement oral accomplishes is allowing the other party to make up ludicrous lies should they ever become evil and litigate or die and the beneficiaries of their estate litigate or (perhaps most likely of all) attempt to sell their ill-defined intellectual property rights to a third party, who litigates.

-- In all jurisdictions that I am familiar with, particularly the United States and Canada, a written agreement dealing with contractual and "soft" (ie. trademark and copyright) intellectual property rights doesn't need any involvement from a lawyer whatsoever to be totally legally binding.  It's never a bad idea to pay a lawyer a few hundred dollars to look at the agreement before you have the counter-party sign it to make sure that you are not fucking yourself, but you don't need to.  You will still benefit from the written agreement because it makes it a lot harder for the party to make up ludicrous lies and fuck you down the line.  Again, and I need to emphasize this, just because you are memorializing your agreement in writing does not mean lawyers need to get paid.  A contract is something any band can write up and sign in the time they might otherwise spend bullshitting or trying and failing to get laid in a single afternoon.

-- Lawyers love oral agreements.  That's because legal fees in a situation controlled by an oral agreement are generally far higher than in a case with a relatively clearly drafted written agreement.  In an oral agreement you can call witnesses to testify to their intention when they negotiated, drafted and concluded the agreement.  You can get into an old-fashioned ding dang full trial.  You can go for months!  Oral agreements and gentleman's understandings do not keep the lawyers away, instead they make the lawyers impoverish you should your agreement give way to a legal dispute.

-- There is no way to anticipate the full impact of the oral agreements under discussion because for the most part insufficient time has elapsed to see their full impact.  Only once artists are transferring their intellectual property rights in some number will the full impact of the this informal approach become clear.  More importantly, we do not know how many artists wanted to transfer or otherwise monetize their intellectual property rights but couldn't because of the nature of the agreement they concluded. 

What an oral agreement will do is provide substantial inertia to keep those intellectual property rights with the label with which it was concluded because it's unofficial nature makes it difficult to transfer.  Which is fine as long as the original label was a font of beauty, fairness and understanding, but not so good for all the labels that use the same practices but are run by absolute bastards.  To anyone interested reading more about this phenomenon (probably nobody but just in case), I refer you to Hernando de Soto's The Mystery of Capital, an extremely influential book that posits convincingly that third world countries are frequently kept poor because they lack sufficient infrastructure to permit official recognition of the property rights of the poor.  The analogy pretty much makes itself.
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Ptommydski

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Quote from: tricia kidd
then perhaps you could help me to understand by answering my questions.  or at least simply answering the question: why did Rusk feel he had the right to own the master tapes for albums that had already recouped their cost when the Surfers wanted them?

The BH Surfers were a band, they wanted to make some records. Touch & Go decided that they would be happy to pay for and then put out their records using a deal which they had used with several other bands, who accepted and understood the arrangement thus - the band and the label would receive an equal split of the proceeds (50/50). Everybody knew this was the deal which Touch & Go favoured, it was literally public knowledge. Furthermore, the other bands on the label signed to Touch & Go specifically because of this deal. This was largely because they knew Corey Rusk to be an honest and decent individual that everybody could trust to do business with. If you look at the names on the Touch & Go roster now and especially then and think about the people in these bands, it should be apparent that some people renowned for their demanding ethical criteria considered Touch & Go to be the appropriate label to represent themselves and their music. No small part of this was the lack of contracts and lawyers involved and the dramatically higher royalty rate (remember on major labels the artist usually gets about 5-9% of the proceeds after costs, usually after owing the label a significant amount of money for their advance, among other bolt-ons).

At this point, the BH Surfers had the choice of making a deal with Touch & Go or going elsewhere. Nobody put a gun to their heads and made them do a deal with Rusk, they were happy to be working with his label and very glad to get their records made. Corey Rusk's support of bands is legendary and there's no need for me to emphasise the point here with examples because they are too numerous. Rusk gave them the money to make the records, paid for the distribution and manufacture, as well as the advertising and tour support. He put his own financial well-being and that of the other bands on his label on the line for the BH Surfers. He held up his end of the deal and then some. I doubt that the band would ever amounted to much without the work of Rusk and Touch & Go. The deal was that Rusk and the BH Surfers would receive an equal share of the proceeds and that's exactly what happened for well over a decade. When the BH Surfers wanted to move on to another label, they did so. Rusk continued to hold up his end of the deal they had made because that's what you do if you've given someone your word. The records continued to be on the shelves, the BH Sufers kept getting their royalty cheques same as always.

Then suddenly years down the line, the deal is apparently no longer working for the BH Surfers. Nothing has changed, the records are moving at the same pace they ever did and Touch & Go is ensuring that the albums are available and the royalty cheques are going out. The dependable Rusk is holding up his end of the deal, same as ever. He doesn't deal with the manager who is calling him talking bullshit because it seems insane that anybody would genuinely want the ridiculous demands being made. His stance is that the manager wasn't involved with the original deal and that he doesn't even know if the manager is speaking on behalf of the BH Surfers, who haven't contacted him. Considering the fact that historically, especially by this point, the BH Surfers had built a reputation as incredibly difficult, dishonest people. All kinds of stories regarding their insanity had filtered through to Rusk and his peers but he continued to put out the records and post the cheques same as he ever did. A deal's a deal, he thought. It doesn't matter that they have been acting like assholes to all and everyone in the community for going on a decade, I made a deal and my word should count for something or my business is built on a lie.

Given all of the above, my instinct upon receiving a court order would have been the same. Rusk circled the wagons and fought it because no doubt he felt betrayed by the actions of a band whom he had by their own admission essentially made. I can completely understand why he felt so wounded because the deal was absolutely fair by anyone's standards and he had upheld his part of the deal. If he'd immediately rolled over, it might have looked like an admission that he was in some way in the wrong, when evidently to anyone with even scant regard for the practices of the independent music community knew he has upheld his part of the deal. He gave the band money to make the records. He manufactured and distributed the records. He advertised them for years and provided the band with extensive tour support for a long time. He made sure the records were always in print and available to anyone who wanted them. He didn't stop the BH Surfers from leaving the label when they wanted to. He continued to send out the royalty cheques, same as ever. Rusk went well beyond the call of duty for this band and it would naturally seem unfathomable that they would betray him in this manner, as indeed it continues to seem to me today. Literally all he wanted was the rights to continue selling the records which he had bankrolled, so he could continue paying his massively over the average royalty rate to the BH Surfers.

Thus - it's literally this simple. If you think that Touch & Go's handshake deal is an unfair one, don't ever work with Touch & Go. Don't buy their records, don't get involved in any way. That option is always available to you and I implore you to take it. Personally I know through experience that Touch & Go are an exemplary label and I support them in the above situation because they held to their deal, same as ever. If you don't understand that, I have no problem at all. This is actually a useful marker for where you and I stand, as I've already said.
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Ptommydski

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This more or less makes the point I was attempting to make.  When MacKaye says "If you have an oral contract, lawyers don't get paid. It's kind of perfect that a court would be offended by that," he is not only wrong, he is the diametric opposite of right.  This is because a number of facts (yes, facts) about the legal system that I should have perhaps made explicit at the outset.

Again, I couldn't debate you if I wanted to. You're absolutely right from a legal perspective. The handshake deal is ludicrous, it should not have worked as well as it has for so long. However, it has worked for Touch & Go and Dischord among others. That's the brilliance of it.

Rather than debate this again, when it's fairly obvious that we've reached an impasse in terms of the "this shouldn't work but it does" situation, let's do an intellectual exercise. If you had to start a record label tomorrow, especially given what you now know about Touch & Go and Dischord against your indisputably excellent, professional knowledge of the law, what arrangement would you personally have with bands? What kind of deal would make you comfortable?
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tricia kidd

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Given all of the above, my instinct upon receiving a court order would have been the same.

the article indicates that he didn't receive a court order until after he refused to release the master tapes to the band.

"The legal battle started officially in December 1995 when the Buttholes sent Rusk a letter demanding that their share of the net profit be increased to 80 percent. When Rusk refused their proposal in writing, they sent him another letter demanding that he stop selling their records and give back the master tapes. When Rusk again refused, the Buttholes sued him and Touch and Go."

unless my reading comprehension is completely broken, that timeline shows that no legal action was pursued until after the Surfers had, on their own, without lawyers, indicated that they wanted out of the contract and to have the master tapes.

if you have another source that indicates otherwise, feel free to correct me.

but none of that wall of text you typed addresses my question:

why did he feel it was his right to keep the physical master tapes well after the cost of recording and promoting the albums had been recouped?  why did he not respect the artists' wishes to own their own art, even after said art had made him a good profit?
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Damnable Fiend

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I was thinking about this the other day.  Without some sort of contract or copyright in writing is it possible to do anything if someone tries to claim your music as their own?
« Last Edit: 18 Feb 2010, 22:03 by Damnable Fiend »
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David_Dovey

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Honestly tommy I really have no idea why you are trying to talk circles around this issue instead of just directly answering the question. Am I completely misunderstanding something here?

Let me try:

why did he feel it was his right to keep the physical master tapes well after the cost of recording and promoting the albums had been recouped?  why did he not respect the artists' wishes to own their own art, even after said art had made him a good profit?

He did not why did he not respect the artists' wishes to own their own art because that was strictly counter to the agreement Rusk made with the BS (appropriate acronym if I've ever seen one), the same agreement he made without a problem with the dozens of artist who are or have been on T&G. Namely, the artist receives a royalty rate that is literally 10 times the industry standard, royalties that they would begin making far earlier than usual due to not having to recoup any advance . In exchange for this T&G reserved the right to continue selling the records the BS made with T&G for as long as they chose to keep them in print, whether or not BS was still with the label anymore. Rusk was only doing exactly what he and BS had agreed on, an agreement that had in fact proved quite lucrative for the band, far moreso than if they were operating under a standard recording contract.

The problem is that BS wanted to have their cake and eat it. They wanted the ludicrously high royalty rate (hell they wanted an increase to 80%!), plus the rights to their back catalog, leaving T&G with effectively nothing. Corey Rusk is a magnanimous guy, no doubt, but homeboy still needs to eat.

TL:DR; He felt he had the right to keep the tapes + continue to press BS records because they said he could
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David_Dovey

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OK so it would seem that the Butthole Surfers contradict that but let's be fair they're notorious acid casualties who are also given to saying shit like

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"But after three years of living on the road in squalor, we wanted to have what Corey had--a house, cars, exotic animals....Corey's always made much more money off the catalog than I did. A dollar for Corey, 20 cents for Paul Leary--I'd want that deal for perpetuity too"

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"You could also say Touch and Go is greedy for wanting to keep taking 50 percent of the profits forever, or to keep the records when they weren't doing as much work anymore.  There's no punk-rock moral high ground here."

i.e; there is some pretty heavy delusion and denial here, born of a a completely fucking irrational paranoia, like Corey Rusk was getting rich off of Butthole Surfers records, while they played suffering artist.

I'm getting pretty heavily into hearsay here but honestly I'd be far less surprised someone who is capable of saying shit like that with a straight face would misrepresent the truth of the oral agreement than someone who has literally the testimonials of everyone else he has worked with not to mention that his side of the story is that he made the same deal he made with everyone?
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Ptommydski

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TL:DR; He felt he had the right to keep the tapes + continue to press BS records because they said he could

I said this about six times in two different threads. It's never going to make a difference unless you actually consider making a verbal agreement with a friend who fully honours their part of it to be worth exactly shit. You and I might think that's fucked up but it's never going to dawn on some people for the reasons I've already broached. Certain people are never going to understand that this situation momentarily threatened the existence of an honour based system which is integral to the existence of the independent music community. This entire debacle nearly kicked out the foundations of not just Touch & Go but everybody who operated on the system, which is borderline every independent record label worth a damn. I don't expect it to mean shit to a tourist so I'm not going to waste my time trying to explain basic ethics when if it hasn't sunk in now it never will.

The problem is that BS wanted to have their cake and eat it. They wanted the ludicrously high royalty rate (hell they wanted an increase to 80%!), plus the rights to their back catalog, leaving T&G with effectively nothing. Corey Rusk is a magnanimous guy, no doubt, but homeboy still needs to eat.

More to the point, he's running a record label which employs a number of people and funds, manufactures and distributes hundreds of bands. He has responsibilities which outweigh merely eking out an existence and certainly more so than funding the recreational drug habits of trust-fund dilletantes playing Exploding Plastic Inevitable. If it wasn’t for the existence of Touch & Go and their ilk, music as we know and love it wouldn’t be the same. Again, I know this means exactly dick to most people and that’s fine by me.
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David_Dovey

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It probably doesn't hurt also that doing a cursory bit of research into the history of the Butthole Surfers reveal that they've turned burning personal+professional bridges into a fine art. Context makes this whole debate a bit more clear-cut than those coming into this with no prior knowledge of BS's behaviour would think.
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KharBevNor

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I was thinking about this the other day.  Without some sort of contract or copyright in writing is it possible to do anything if someone tries to claim your music as their own?

Yeah, you just keep selling it and make the fact that it's yours widely publicised and known. It's fairly easy to prove if you've made a piece of music, especially in the digital age. This sort of thing has actually been tried several times (first case that comes to my mind is the black metal band Velvet Caccoon, who put out another local bands demos with different id3 tags on filesharing networks in order to build up their black metal mystique by making out that they'd been around longer than they had), and it normally gets ferretted out pretty quickly and the bands or people who try it tend to get a fairly harsh negative reaction.

Copyright law is just that, a law, and like all laws part of the purpose of its design is to reinforce social and political hegemony. Imagine if I were to try and sell Mickey Mouse merchandise tomorrow: the Disney corporation would annihilate me utterly. But say (unlikely I know) that the situation was reversed, and the Disney corporation decided to employ one of my paintings, drawings or songs in some way, to make them money. I wouldn't even be able to afford the time necessary to mount a case against them. It works in a similiar way with labels. All putting your music under copyright means is that it is now a commodity, and that it can ultimately be possessed, in an intellectual sense, by someone other than you; an idea which leaves any self-respecting artist nauseous. Companies always have an advantage in this sense over small groups or individuals, who cannot even really afford the hassle of trying to take them to account via the legal system.

In an ideal world, any band that got screwed over in such a way would respond by burning down the record labels offices.
« Last Edit: 19 Feb 2010, 09:50 by KharBevNor »
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[22:26] Dovey: like, maybe, 4 or 5 times that i know of?
[22:26] Dovey: and at least one of those was a blatant ploy at getting sigquoted

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pilsner

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Not exactly, Khar.  At root, intellectual property over copyright (as opposed to trademark and patent which are very different situations) is the creator's right to control the performance, reproduction and distribution of their creative expression.  As a musician, it is what prevents another person from hearing the song you wrote, performing it and claiming it as their own, or recording your song and selling the recordings for profit at less than you are charing for your own recordings.  Were people able to do both these things without repercussion, it would be far harder to earn a living as a musician.

In answer to your question, Damnable Fiend, copyright regimes change from country to country although most first world countries have broadly similar regimes that are coordinated, in a general sense, through international treaty.  In Canada and the United States your copyright attaches to your song composition as soon as you write it (giving you certain legal rights to prevent other people from performing it without your permission), and to your song performance as soon as it is performed (giving you certain legal rights to prevent other people from recording it without your permission, or copying your recordings and selling them without your permission). 

Therefore without anything written down, in Canada and the United States you have a legal right to "enjoin" (sue to legally prevent) someone from breaching your copyrights in your compositions and performances, and you may sue for damages if they have already breached the copyright, by, say, recordings your performances and selling the recordings online without your permission.  However, just because you can sue, doesn't mean it will be easy to prove that the composition was your composition, or that the performance recorded was in fact your performance.  In an actual lawsuit, there are several steps that you would have to take to make this proof, which I could go into at length but won't.  Otherwise this post will be really, really long.

Now, in both Canada and the United States there exist regimes where you can "register" a copyright.  This sometimes confuses people into thinking that if you haven't registered a copyright, you don't have one.  Not true!  Again, the copyright attaches automatically as soon as you create the composition and perform the performance.  The point of registering a copyright is "evidentiary", meaning that you are now in a database publicly claiming something as your own, and this makes it far more difficult for someone else to come along and say "hey that was mine!"  It's still possible for this to occur however.  For instance, it is not unheard of for someone to plagiarize something and then register the copyright to make it difficult for the true author to assert authorship.   These situations tend to get ugly.

Where the importance of writing comes along is that, per Tommy's article, the United States copyright law limits the transfer of copyright by oral agreement.  Normally, if I create a composition and then perform it, I can sell to you all my rights to perform the composition, record the performance, sell the recordings, etc.  So you give me money, and in return, it's like I never created the composition at all (with a few little exceptions that I'm not going to go into).  Now if I were to try to perform or record and sell recordings of my own composition without your permission, you could sue me.  Generally when you hear about musicians get fucked by their labels, it's because they sold all rights in their compositions and later found out that they had received far too little.  However, per the article, that agreement that we make to sell the copyright from me (the musician) to you (the buyer) has to be in writing.   In part, this is to prevent some unscrupulous person from lying and saying that we had an oral agreement to sell the copyright when in fact we did not.
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Damnable Fiend

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Bear in mind that I'm totally ignorant of copyright practices, but doesn't copyrighting things (the official way, I mean: in writing) cost money?
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pilsner

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Fuck no.  Things are copyrighted the official way for free as soon as you create them.  Imagine a magical copyright fairy named Nancy.  You're writing a song in your basement.  Nancy the magical invisible copyright fairy is right behind you, and every time you make a change to the score, Nancy copyrights it.  If you discard your old score and throw it in the floor, Nancy copyrights it anyway.  If someone sneaks into your basement in the dead of night, finds the crumpled up score on your floor, steals it, and records a song based on that score, Nancy's copyright allows you to sue that person.

Something else I'd like to stress about copyright is that it gives you a legal right to sue when someone has infringed your copyright.  That does not mean you have to sue.  In fact, someone can infringe your copyright, and you overjoyed that they have complimented you by imitating you can send them a bouquet of roses.  Of course, after a certain amount of time passes, you can't change your mind and turn around and sue (usually).
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Damnable Fiend

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I'm not sure if that was meant to be condescending, but thanks anyway for clearing that up for me.  I'm thinking of starting up a sort of DIY band myself so it's personally relevant.
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"[human beings] just get carried away by new ideas, like dressing up in jackboots and shooting people, or dressing up in white sheets and lynching people, or dressing up in tie-dye jeans and playing guitars at people."

pilsner

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Wasn't meant to be condescending, and I apologize if that was the impression.  Nancy apologizes as well.

Also, to clarify, the unwritten copyright is "official" in every way.  Registering the copyright does cost money, usually, but it's a nominal amount.  For instance, online registration of a basic claim in an original work of authorship is $35 in the States.  I need to stress that that registering the copyright only makes it easier to sue if someone rips you off.  It does not confer any new rights that you did not already have.

Where the writing becomes important is when you are transferring the copyright to another person.  Or, really, making any arrangements with others about how the income derived from exploitation of the musical works will be shared.
« Last Edit: 19 Feb 2010, 16:14 by pilsner »
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Scandanavian War Machine

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She's always so polite.

I love that fairy.
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