Advocate Jan 2014

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140 VOL. 72 PART 1 JANUARY 2014 THE ADVOCATE the court also accepted Bright Tunes’ argument that the enormous success of “My Sweet Lord” generated revenue for Harrison’s other compositions on All Things Must Pass. The court relied heavily on the amount of American airplay received by each song from All Things Must Pass with a corresponding percentage assigned to each of the 22 songs on the album. The judge eventually concluded that 70 per cent of the total mechanical royalties from the single and 50 per cent of the mechanical royalties earned by the album were attributable to “My Sweet Lord”. Judge Owen used a different approach for The Best of George Harrison since, in his view, that album was not greatly enhanced by the inclusion of “My Sweet Lord” and it contained other enormously popular songs. In the end he assigned $54,526 from the single, $588,188 from All Things Must Pass and $6,877 from The Best of George Harrison, for a total of $649,591 in mechanical royalties. For Apple Records’ profit, the judge examined the “spread” between the manufacturing costs Apple paid Capitol Records and the price at which it sold the records. He assigned sums for each album and the single for a further total of $1,077,958. Having determined that Harrison had not consciously plagiarized “He’s So Fine”, the judge then applied the rationale that only three-quarters of the success of “My Sweet Lord” could be attributed to “He’s So Fine”. With a few other deductions thrown in for good measure, he finally settled upon a grand total of $1,599,987 in damages. But even here things did not resolve. Before Judge Owen’s decision on damages was rendered, in 1978 Klein (using settlement monies he had obtained in litigation severing his ties with The Beatles) had actually purchased Bright Tunes (including its interest in “He’s So Fine” and the corresponding litigation) outright for the sum of $587,000. The purchase was not for Harrison, but for Klein’s own company, ABKCO. Thereafter ABCKO stepped into the shoes of Bright Tunes in the lawsuit against Harrison. Harrison counterclaimed for various breaches of fiduciary duty, seeking a constructive trust over the “He’s So Fine” asset acquired by Klein. After yet another two-day hearing before Judge Owen, ABKCO was required to hold the rights of “He’s So Fine” in trust for Harrison, with those interests being transferred to Harrison upon the payment by him of $587,000 plus interest to ABKCO. 9 This would allow Klein to “break even” on his purchase of Bright Tunes, with Harrison owning a 100 per cent interest in both “He’s So Fine” and “My Sweet Lord”. Appeals and yet more litigation continued into the 1990s as the parties fought about the impact of royalty earnings in foreign jurisdictions and competing actions filed in the United Kingdom. 10 It all did, however, even-
THE ADVOCATE VOL. 72 PART 1 JANUARY 2014 141 tually resolve through settlement for an undisclosed figure. When it was over Harrison owned both “My Sweet Lord” and “He’s So Fine”. Harrison at one point tried to give “My Sweet Lord” away to make the litigation stop—“Just let ’em have it; it doesn’t matter to me,” he explained later. His lawyers presumably talked him out of it, nevertheless he summed up the litigation experience this way: “As far as I’m concerned, the effect the song has had far exceeds any bitching that’s been going on between copyright people; it’s just greed and jealousy and all that.” 11 Hallelujah. Hare Krishna. ENDNOTES 1. Bright Tunes Music Corp v Harrisongs Music Ltd, 420 F Supp 177 (SDNY, 1976) [Bright Tunes]. 2. He assumed senior status in September 1989. 3. “Encounters by George Sturm: Richard Owen”, Music Associates of America (undated), online: . 4. See Bartok v Boosey & Hawkes Inc, 523 F 2d 941 (USCA 2d Cir, 1975). 5. George Harrison, I Me Mine (New York: Ganga, 1980) at 176. 6. See “Legal Anecdotes & Miscellanea” (2013) 72 Advocate 943. 7. The experience led Harrison in 1976 to write “This Song”, which includes the lines: “This song has nothing tricky about it / This song ain’t black or white and as far as I know / Don’t infringe on anyone’s copyright so … This tune ain’t bad or good and come ever what may / My expert tells me it’s okay / As this song came to me unknowingly.” 8. Bright Tunes, supra note 1 at 180. 9. ABKCO Music Inc v Harrisongs Music Ltd, 508 F Supp 798 (SDNY, 1981), aff’d with modification and remanded 722 F 2d 988 (2d Cir, 1983). 10. See ABKCO Music Inc v Harrisongs Music Ltd, 944 F2d 971 (2d Cir, 1991). 11. Fred Bronson, The Billboard Book of Number One Hits (New York: Billboard Books, 2003) at 1310. t t t t t
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Page 163 and 164: Because not everyone is this lucky.
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Advocate Jan 2014

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