Musicians Jan - 01 - Nashville Musicians Association

January-March 2009 The Nashville Musician 7
Circumstances Of The Case
Favors Right Of Publicity Claim
By Musicians And Songwriters.
Collectibles is a small record label that distributes
and sells music recordings, especially
repackaged vintage recordings. Home Cooking
Records is a music producer specializing in
Texas blues. Home Cooking Records commercially
licensed to Collectibles certain master
recordings of various and sundry blues musicians
and songwriters.
The written license agreement purported to
give Collectibles the right to use the names, photographs,
likenesses and biographical material
of all those whose performances were contained
on the master recordings. It was represented to
Collectibles by Home Cooking Records that the
latter was entitled to convey these rights. This
turned out not to be the case.
Using the master recordings, Collectibles
manufactured and distributed cassettes and
CD's, as well as music catalogs, with the names
and sometimes the likenesses of the performers
on or in them. In addition, Home Cooking
Records, but not Collectibles, sold posters or
videotapes with the names or likenesses of these
blues musicians and songwriters. The blues musicians
and songwriters, upon discovering their
songs and personal information being sold and
distributed without their written consent, filed
suit in federal court in Texas on grounds of
copyright infringement and misappropriation of
their names and likenesses under state law, the
Jazz &
Blues Beat
By ROBERT
AUSTIN
BEALMEAR
A Happy New Year to you all! Wow! Last
year I opened this column by whining about
the terrible condition of the world at the end of
2007, and the appalling inability of humans to
make it better. But that was NOTHING compared
to how 2008 ended. While a new war
raged in the Middle East, economies world wide
were reeling from the effects of greed and negligence.
The widening financial crises quickly
trickled down to musicians as concert, club, and
record sales fell off significantly.
January usually means it's time for the International
Association of Jazz Educators' annual
convention, but after last year's disappointing
attendance at the Toronto convention, IAJE
made the shocking announcement that it was
bankrupt and out of business. IAJE had become
the major support institution for jazz education
and leaves a huge hole in the ability of an art
form to perpetuate itself. Some sort of re-organization
is expected.
The Mid-South Jazz Festival at Austin Peay
State University returns with the John Proulx
Trio on April 3 at 7:30 p.m. Guido's and F.
Scott's are staying with their reduced jazz
policy: Guido's has fewer nights and solos only,
F. Scott's has groups only Thursday, Friday, and
Saturday, solos the other nights. The Italian Grill
& Café has only an occasional night of swing
now, and even the number of blues jam nights
is down. Thank goodness, it's not all bad news,
so let's lighten our spirits with the good stuff
going on around Middle Tennessee.
On Jan. 30, former jazz saxist Matt Catingub
guest conducted the Nashville Symphony's
Adams and Reese Jazz Series, this time featuring
smooth jazz saxist Dav Koz and a program
of movie music at the Schermerhorn. Next concert
in that series is vocalist Madeleine Peyroux
and her band, March 13. Do you wonder if trum-
LEGAL TIPS
By
Marshall M. Snyder
Attorney - at - Law
latter being a claim for violation of the right of
publicity.
A jury trial ensued in which the jury found
copyright infringement by Home Cooking
Records but only innocent copyright infringement
by Collectibles, the latter being unaware
that it had no legal right to market the copyrighted
materials. The jury furthermore found
both Home Cooking Records and Collectibles
liable for misappropriating the names and likeness
of the plaintiffs without their consent.
Home Cooking Records and Collectibles argued
strenuously that the misappropriation
claim under state law could not be brought
against them due to the fact that the misappropriation
claim was preempted by the Copyright
Act and, therefore, was an invalid claim.
The Copyright Act provides that: On or after
Jan. 1, 1978, all legal and equitable rights
that are equivalent to any of the exclusive rights
peter Doc Severinsen is still wearing the wild
jackets Johnny used to make jokes about? You
can find out March 5-7 when Doc blows into
town with guitar, violin, and percussion (Luis
Conte) for three nights of "Nuevo Flamenco"
music with the Symphony called "The Rhythm
of Life."
While it's really too early to tell, the major
jazz event of the year may be the appearance of
the new Chick Corea & John McLaughlin Five
Peace Band at the Schermerhorn April 6, at 7
p.m. This is probably a one-time only pairing
of two pioneers of "fusion" jazz, fronting an
all-star group of Kenny Garrett, alto sax, Christian
McBride, bass, and Vinnie Colaiuta, drums
The Nashville Jazz Orchestra's next scheduled
concert is Feb. 26 at Blair's Ingram Center,
featuring vocalist Mandy Barnett
(Nashville's Patsy Cline-reincarnation) at 8 p.m.
The NJO's annual Writer's Night concert will
be April 23, also at Blair. More info at
www.nashvillejazzorchestra.org
Across from Vanderbilt, Crescent City restaurant
has a new owner and new name, "Music
Row." We're told they feature gourmet food
at budget prices, and live music including jazz
and blues.
Middle Tennessee State University in
Murfreesboro continued its Jazz Artist Series
Feb. 12 with renowned Knoxville pianist (and
former Jazz Messenger) Donald Brown. Their
spring Jazz Festival is usually an all-day event,
this year on April 4, featuring one of the great
young lions of trumpet, Terrell Stafford, at 7:30
p.m. Both performances are in the Wright Music
Building on the MTSU campus.
At Belmont University, world-class jazz pianist
Bruce Dudley presents a program called
"American Piano Jazz of the Past Century" on
Monday, Feb. 23 at 7:30 p.m. in Massey Concert
Hall. The Belmont Jazz Festival showcases
student groups at Massey four nights. On March
17 – Jazz Band; March 18 – Jazz Band II and
Jazz Small Group; March 19 – String and Bass
Ensembles; March 21 – Jazzmin (the vocal
group led by Sandra Dudley). All at 7:30 p.m.
For the Nashville Jazz Workshop in February
and March, check their website for artists
in their "Snap on 2 & 4" series, and "Jazz On
the Move" series at Frist Center,
www.nashvillejazz.org I also hear their Sunday
jam sessions are back, instrumentals every
first Sunday, vocal jams every third.
On the blues scene, the long-running Tuesday
night jams continue at Cragnacker’s Bar
and Grill in Old Hickory. The house band plays
within the general scope of copyright as specified
by section 106 in works of authorship that
are fixed in a tangible medium of expression
and come within the subject matter of copyright
as specified by sections 102 and 103,
whether created before or after that date and
whether published or unpublished, are governed
exclusively by this title . . . 17 U.S.C. § 301(a).
Section 301 requires the fulfillment of two conditions.
First, the content of the protected right
must fall in the subject matter of copyright.
Second, the nature of the rights granted under
state law must be equivalent to any of the exclusive
rights in the general scope of a federal
copyright.
As noted by the court, the Texas tort of misappropriation
provides protection from the unauthorized
appropriation of one's name, image
or likeness. It is best understood as a species of
the right of publicity or of privacy.
To prevail, a plaintiff must prove that (1)
the defendant misappropriated the plaintiff's
name or likeness for the value associated with
it and not in an incidental manner or for a newsworthy
purpose; (2) the plaintiff can be identified
from the publication; and (3) the defendant
derived some advantage or benefit.
Home Cooking Records and Collectibles argued
strenuously that plaintiffs did not present
an independent action for misappropriation. Because
plaintiffs names and/or likenesses were
used to identify their musical works in Collectibles'
CD's, tapes and catalogs, Home Cook-
7-8, jam goes until 11. For a list of clubs that
regularly have blues and the dates of their
monthly Blue Friday meetings, go to the Music
City Blues Society website at
www.musiccityblues.org, or for a weekly update,
call MCBS Blues Hotline, (615) 292-5222.
Vocalist Les Kerr and his Bayou Band will
present their 18th Consecutive Mardi Gras Concert
at Nashville’s Bluebird Café on Fat Tuesday,
Feb. 24. Les will also be featured for this
year's "Oyster Easter" fundraiser April 11 at
Traveler's Rest. This event is the main
fundraiser for the Community Resource Center,
a non-profit that serves the needy with
household goods, furniture and appliances.
Event includes a silent auction, New Orleansstyle
food (lots of oysters), and a King and
Queen.
Not much new on the radio scene. At WMOT
Jazz89 (89.5FM) gwe got a hip and humorous
take on romance with the JAZZ On The Side
Valentine's Day special, "Is You Is Or Is You
Ain't My Baby," Feb. 15. Then get April Fooled
on March 29 with "Dr. Rhythm's Incidental
History of Jazz."
Sadly, more jazz and blues legends passed
on at the end of 2008. October: Ray Ellis, composer,
conductor and TV producer, was arranger
for jazz vocal legends like Sarah Vaughan and
Billie Holiday ("Lady in Satin"). Merl Saunders'
organ stylings sent artists like Jerry Garcia to
the jazz and blues side of the groove. Perhaps
appreciated more by musicians than fans, Dave
McKenna was a virtuoso pianist who always
swung and always respected the structure of a
song.
Many of the most famous images of jazz men
and women were captured by photographer
William Claxton. Check out his book "Jazz
Life." He began his career as a trumpet man
with Woody Herman and others, but Neal Hefti
will always be remembered as an arranger-composer
par excellence from big bands to TV
("Batman," "The Odd Couple"). His album "The
Atomic Count Basie" is one of the enduring
classics of recorded jazz.
Actress Edie Adams was a classic pop singer
when "pop" was still basically big band jazz.
Trivia question: who played the famous opening
clarinet glissando in the 1945 film "Rhapsody
in Blue"? Answer: reed player Al
Gallodoro, whom Jimmy Dorsey called, "The
best sax player who ever lived." In his eightdecade
career he played with orchestra leaders
from Paul Whiteman to Arturo Toscanini.
In November, we lost two drummers who
ing Records and Collectibles asserted that the
core of the misappropriation and copyright infringement
claims were one and the same hence
requiring dismissal of the misappropriation
claim.
The court had noted, however, that Home
Cooking Records and Collectibles argument ignored
that the content of the right protected by
the misappropriation tort does not fall into the
subject matter of copyright, as section 301 requires.
The tort for misappropriation of name or
likeness protects the interest of the individual
in the exclusive use of his own identity, in so
far as it is represented by his name or likeness,
and in so far as the use may be of benefit to him
or to others.
In other words, the tort of misappropriation
of name or likeness protects a person's persona.
A persona does not fall within the subject matter
of copyright - it does not consist of a writing
of an author within the meaning of the Copyright
Act.
The plaintiffs had not granted any copyright
in their materials. The plaintiffs had not granted
through contract any right to use their name or
likeness. Therefore, and properly so, the court
reasoned that the Copyright Act had not preempted
the plaintiffs claim for misappropriation
of their name or likeness.
(Marshall M. Snyder is a Music Row attorney
who can be reached at 615.742.0833 or by
e-mail at marshall.snyder@nashville.com)
were the last generation to use jazz style drumming
to drive rock bands. England's Mitch
Mitchell pioneered the idea of the virtuoso rock
drummer, lighting the fires behind guitar wizard
Jimi Hendrix. And Cheyenne Indian Jimmy
Carl Black set the groove to Frank Zappa's farout
arrangements for the original Mothers of
Invention.
In the jazz-oriented world of 1950s’ pop music,
the most far-out voice was that of Yma
Sumac, a Peruvian soprano with a range well
over four octaves. Feminist, author, and record
producer Rosetta Reitz specifically championed
the recognition of women artists in early jazz
and blues for 30 years.
December: Derek Wadsworth was a British
trombonist who worked with Tony Bennett and
Maynard Ferguson, but was mostly known for
TV and film composing. West Coast pianist
Page Cavanaugh was a legend in what we'd now
call "lounge jazz" with a long-lasting trio modeled
after the King Cole trio. They were featured
on Sinatra's radio show and in several
films of the 1950s’.
Robert Ward was a blues singer and guitarist
who founded the pop-soul band that became
"Ohio Players." Few would argue with saying
that Freddie Hubbard was the best of the postbop
trumpet players. His unique tone and searing
inventiveness were featured on dozens of
classic 1960s’ recordings with everyone from
Art Blakey to Ornette Coleman. A series of
popular commercial jazz albums in the ’70s led
to some lesser efforts that were hated by the
critics, but in the clubs he kept his blazing
improv style intact until the ’90s when a lip infection
seriously limited his abilities in the last
two decades.
Stay warm and we'll talk again in the spring.
Member earns Spirit of Hope honor
Singer Michael Peterson (“From Here To
Eternity”) was named as the 2008 recipient of
the Bob Hope Spirit of Hope Award, Dec. 3, in
recognition of his entertainment of the troops
in the war zones of Iraq and Afghanistan.
Local 257’s Peterson proudly proclaims:
“The men and women in uniform who serve
our nation selflessly are inspiring to be around.
For decades, Bob Hope served them with entertainment
and encouragement from home.
Because of Mr. Hope’s sacrifice and service,
today’s entertainers have the same opportunity.
I am grateful for this recognition and the privilege
of being associated with his legacy.”