The U.S. Supreme Court Upholds Kingsmen's Federal Court Victory
Written on behalf of The Kingsmen by Barry Curtis.
November 21, 1998.
All rights reserved.
In 1963, the Kingsmen recorded a version of "Louie Louie," a popular
dance tune
written by Richard Berry. The band had no idea it would become
a hit record,
let alone that eventually it would find its way through the entirety
of the
Federal Court System.
From the time of the Kingsmen's first tours in 1963 and 1964, we became
aware
that a number of artists were being exploited (ripped off) by managers,
agents,
record companies, and others in the music industry.
We were more fortunate than many other artists in that we began our
recording
and touring careers on top. Once "Louie Louie" began to make
waves in Boston,
Jerry Dennon, the Kingsmen's producer and owner of Seattle's Jerden
Records (the
song's original label), quickly entered into a lease-master agreement
with
Scepter/Wand Records in New York. At the same time, the William Morris
Agency
(Chicago office) began booking tours throughout the nation. Not
long
thereafter, the band signed a management agreement with Scandore &
Shayne, a
powerful firm who's clients included, most notably, Johnny Carson.
The Kingsmen were paid decently (if not handsomely) for hundreds of
personal
appearances, and received royalty payments from Wand Records.
The amounts of
the royalty payments were based on negotiated percentages of revenues
relating
to the number of units sold of the various Kingsmen recordings, as
reported to
the band by Wand.
We first began to suspect that we also might have been the victims of
exploitation when we were told (by record company executives) that
they would
"burn their books before we would ever see them." Therefore, we were
never able
to confirm to our satisfaction that we were being paid royalties in
accordance
with the true number of units sold. We do not state this as an
accusation, as
we have no evidence upon which to base such an accusation.
In the course of events, record sales dwindled and, since musical styles
were
changing, the band became dormant in September of 1968. Sometime
thereafter,
Scepter/Wand ceased operations and their catalog of masters, including
105
Kingsmen recordings, was acquired by another firm. We didn't
think much about
this, although we became aware of occasional releases of our material,
most
frequently "Louie Louie," on various labels. At that point, we
felt we should
be receiving royalties for these releases, but had no idea how to collect
them
-- we had ended our management agreement and, thus, were without managerial
or
legal representation.
We became more energized, however, when "National Lampoon's Animal House"
opened
in theaters in 1978. Although John Belushi's version of "Louie Louie"
was
featured in the body of the film, the Kingsmen version was played over
the
credits. We felt we should have been paid synchronization rights,
but repeated
attempts to collect failed. "Animal House," for a time, held
the distinction of
being the largest grossing film in history. We knew we should
have been paid
for the use of our record.
"Animal House" not only was a phenomenally successful movie, but also
it spawned
the revival of the popularity of music from our era. Oldies stations
began to
proliferate around North America, Sha-Na-Na-type bands formed in every
city, and
'60s music began to be reissued in earnest by countless record labels.
Kingsmen
material, especially "Louie Louie," figured prominently in this movement.
Many
'60s acts reformed and Oldies package tours hit the road. Fifties/Sixties
dances and concerts soon occupied a significant niche in the live music
industry. The Kingsmen reactivated in 1981 and began touring,
and we are still
touring. We also kept pursuing the idea that we should collect
royalties.
In the early-eighties, we sued K-Tel records. K-Tel had taken Jack Ely
and Lynn
Easton (lead singers of "Louie Louie" and "Jolly Green Giant") into
a studio
and, with studio musicians, re-recorded those songs. Those tunes
were released
on a K-Tel album that proclaimed "Original songs by the original artists."
Ely
left the band in 1963 and Easton left in 1967. The right to the
name "Kingsmen"
remained with the existing band as substantiated in court in 1964 and
reaffirmed
in another court action in 1966. Therefore, K-Tel had no right
to proclaim that
their remakes were by the Kingsmen ("original artists"). We achieved
a
favorable settlement in that case.
While encouraging, the K-Tel case did not address the bigger problem
of our
being exploited by the licensing of our real material and our receiving
no
payment for these licenses (which should have been 9 percent based
on our final
negotiated contract with Wand Records). A significant roadblock
between us and
receiving royalty payments was the difficulty in determining who owned
the
masters and, therefore, who issued the licenses. We have subsequently
discovered that the chain of title has passed through five or six companies.
We
finally found (in the early-nineties) that our masters were owned by
GML, Inc.
of Nashville, Tennessee.
With this knowledge, we secured legal counsel and brought suit against
GML and
Highland Music (a company closely allied with GML that handled the
licensing).
The suit was heard in U.S. District Court in Los Angeles before Judge
William
Keller, and commenced Sept. 29, 1993.
Of great significance, prior to that event, we acquired all of Jerry
Dennison's
rights to these recordings. Therefore we went into this lawsuit
with claim to
all rights associated with the masters, not just the 9 percent as mentioned
above. The circumstances of this acquisition, while legitimate,
will not be
discussed further.
The common misinterpretation of our case is that we sued GML for payment
of past
royalties of "Louie Louie." In fact, we did not sue for royalties
at all; there
is a statute of limitations of only four years that applies to the
recovery of
past royalties -- although a fair amount of activity concerning Kingsmen
masters
had taken place within that four years, we would have missed out on
nearly 25
years worth of uses. Rather, we sued for 'rescission of contract.'
Simply
stated, we sued for ownership of all the 105 master recordings themselves,
including the contracts and all existing third-party licenses associated
with
each of them, and for the on-going exclusive right to issue all future
licenses
for the use of these masters throughout the world. That's what
we won in
Federal Court. All unpaid past royalties are gone forever.
However all
revenues resulting from the then-existing licenses received since the
commencement of the case in September, 1993 were placed into an account,
to be
released to the prevailing party upon ultimate resolution of the case.
Also,
following Judge Keller's finding in our favor at the end of the Federal
Court
action, we have owned the masters and have issued our own new licenses,
including those for the films, "Down Periscope" and "Mr. Holland's
Opus," the TV
series "Third Rock From the Sun," and for several CD reissues.
After much legal wrangling and the filing of a number of motions by
our
opposition (viewed by us as delaying tactics, designed to make this
case as
frustrating and expensive as possible), GML finally filed an appeal
with the
Ninth Circuit Court of Appeals. That case was heard in early
1998 and on
Friday, April 10, 1998, that court filed its opinion upholding Judge
Keller's
ruling on all point of appeal. Following is an excerpt of a Reuters
/ Variety
article published on the Internet on Sunday, April 12, 1998, regarding
the
Appeals Court's ruling:
"The parties do not dispute
that the Kingsmen never received a single
penny of the considerable royalties that 'Louie Louie' has produced
over
the past 30 years," a three-judge panel of the 9th Circuit Court of
Appeals
wrote in its unanimous opinion.
The Kingsmen signed away
the rights to their version of "Louie Louie"
in 1968 for nine percent of future licensing fees and profits.
They were never
paid, however, and in 1993 members of the group finally sued the record
companies that now hold the rights to the record.
The court's ruling said that
that action constituted a "recision,"
or cancellation, of the 1968 contract agreement and meant that money
from uses
of the Kingsmen's version of "Louie Louie" should now go to the band.
"The Kingsmen are entitled
to all income derived from the the
exploitation of the recordings following Sept. 29, 1993," the court
said,
upholding a lower court's ruling.
Reuters/Variety c. Sunday April 12, 1998
One further point of clarification: The phrase "all income" in
the last
paragraph of the above article, refers to our right to collect fees
for the use
of our performances on these recordings. The producers of films,
TV shows,
commercials, records/CDs/tapes, and the like, are responsible for payment
of
royalties to the appropriate publishers and writers of this material.
For no discernible reason (other than, apparently, GML's desire to keep
us, for
as long as possible, from collecting the moneys accruing since 1993),
GML
petitioned the U.S. Supreme Court. On Monday, November 9, 1998,
the Supreme
Court announced that they would not hear the case, thereby upholding
the lower
courts rulings. This ruling was immediately reported by all forms
of media
throughout North America and elsewhere.
Not mentioned in many of the accounts in the various newspapers is the
fact that The Kingsmen now own, and are entitled to all income derived
from the use of ALL 105 MASTERS recorded for Wand Records in the '60s.
The Kingsmen have the exclusive right to license such use.
It is important to note that the suit was brought against GML, Inc.,
the company that had acquired the masters from Wand. Wand, Sundazed,
Rhino, or any other holder of legitimate licenses to use, release,
or
distribute Kingsmen product were NOT defendants in the lawsuit.