[ARSCLIST] Who Owns the Live Music of Days Gone By? (NY Times 03/12)

[Dave Nolan <davenolanaudio@xxxxxxxxxxxxx>]

http://www.nytimes.com/2007/03/12/technology/12video.html?
_r=1&8dpc&oref=slogin

Who Owns the Live Music of Days Gone By? 

By ROBERT LEVINE
Published: March 12, 2007 

When it began in 1973, the “King Biscuit Flower Hour” was very much of its 
time. Bob Meyrowitz, who ran the show during its heyday, had the idea to 
start a weekly rock concert radio program as an alternative to chaotic 
festival shows after a fan was killed at the Rolling Stones performance at 
Altamont. 

“I thought people would bring their cars into big parking lots and dance to 
the music,” Mr. Meyrowitz said. The first episode featured the Mahavishnu 
Orchestra, Blood Sweat & Tears and a barely known singer from New Jersey 
named Bruce Springsteen.

Back then no one thought much about what would happen to the King Biscuit 
recordings, which grew to thousands of hours featuring nearly every top act 
in ’70s and ’80s rock. 

Now, more than 30 years later, the archives of radio and television shows 
like “King Biscuit,” “Don Kirshner’s Rock Concert” and “Later ... With 
Jools Holland” have become valuable prizes in the desperate search for new 
content for Web sites, DVDs and video-on-demand services. 

“It’s all about supply and demand, and with all these new media — 
broadband, mobile phones, video on demand — there’s more of a need for 
content,” said Pat McDonald, co-president of Northstar Media. 

Northstar recently brokered a deal for a company called Concert.TV to 
license video-on-demand rights to “Later ... With Jools Holland,” a British 
music program that has featured performances by R.E.M., Beck and scores of 
other artists. 

But live recordings can come with thorny legal questions. They were often 
made outside the studio under contracts that did not clearly assign 
copyrights to a record label. Now the content owners are scrambling to get 
the permissions needed to sell the material in formats that did not exist 
when the music was recorded. And labels and musicians are also asserting 
their rights to such recordings — in one instance, in court. 

The King Biscuit property, which has changed hands twice, is now owned by 
Wolfgang’s Vault, a company involved in a particularly important dispute 
about how such recordings can be used. 

The company also owns the archive of the late San Francisco concert 
promoter Bill Graham, and is being sued on charges of copyright 
infringement and bootlegging, among other things, by a group of musicians, 
including the Grateful Dead and members of Led Zeppelin and the Doors. 

Mr. Graham’s collection of recordings is remarkable, with performances by 
those acts and dozens of others in their prime. After Mr. Graham died in 
1991, his production company was sold to Clear Channel Communications, 
which in 2003 sold a warehouse of Mr. Graham’s music memorabilia to William 
E. Sagan, a businessman in Minnesota, for more than $5 million. 

Mr. Sagan started the Web site WolfgangsVault.com to sell items from the 
museum-worthy collection, which includes original posters, tickets and 
photographs (Mr. Graham’s given name was Wolfgang Grajonca.) Last year, to 
draw potential customers, Wolfgang’s Vault began streaming over the 
Internet some of the concerts Mr. Graham had recorded.

The streaming audio, according to Ashlie Beringer, a lawyer with Gibson, 
Dunn & Crutcher who is representing the bands suing Wolfgang’s Vault, “was 
the straw that broke the camel’s back.” 

The legal duel involves a number of issues, including the rights to sell 
reproductions of the items in the warehouse that feature the likenesses of 
the artists or the bands’ logos. But the most important issue, given the 
value of what is at stake, is precisely what Mr. Sagan owns. In a statement 
released when the suit was filed, Bob Weir of the Grateful Dead said that 
Mr. Sagan’s actions amounted to stealing.

“Just because you own the tapes doesn’t mean you have the copyright to the 
music on them,” said Ms. Beringer, who argues that Mr. Graham never had a 
copyright to this music in the first place. “The copyright act says that 
the performers are the presumed owners of the copyright.” Since some 
artists were under contracts that specifically granted live recording 
rights to the label, Sony BMG Music Entertainment has also joined the suit. 

In a counterclaim filed this month, Mr. Sagan asserts that Mr. Graham 
acquired these rights by making these recordings, with the explicit or 
implicit permission of the artists, who knew of his reputation for taping 
performances. In a sign of the acrimony the case has stirred up, the filing 
includes a defamation claim against Mr. Weir.

“A copyright owner is someone who contributes to that work, and our 
position is we contributed to the development of the sound recording,” said 
Michael S. Elkin, a lawyer with Winston & Strawn, which is representing 
Wolfgang’s Vault. He said that Mr. Graham had used some of the recordings 
over the years, and that the artists had not objected. 

Mr. Graham could not have anticipated the ways it is now possible to market 
music and the legal confusion that would follow. Standard record company 
contracts give the label rights to artists’ recordings, but some older 
contracts don’t specify what kinds of performances that might include. The 
number of rights required to market a live recording without fear of 
litigation can make one’s head spin as much as some of the music played at 
Mr. Graham’s concerts. 

“You have to look at the artist’s contract with the record company to see 
who would own recordings not made in the studio,” said Robert L. Sullivan, 
a lawyer with Loeb & Loeb who represents the estate of Johnny Cash. In the 
case of a performance originally intended for broadcast, he said, “you’d 
have to look at the radio show contract, and those vary widely.”

For decades, the expense and hassle of clearing all of those rights made it 
impractical to sell old live recordings. 

“These are niche products and they’re not for the casual fan,” said Danny 
Goldberg, president of the artist management company Gold Village 
Entertainment. But Internet marketing and online stores have made it easier 
and less expensive to reach fans, and Mr. Goldberg said that he was 
considering buying a catalog of live recordings, even though he might 
acquire the rights to release only a fraction of them.

At a time when music sales are declining, many expressed frustration that 
it was so complicated to find a way to make money on these kinds of 
recordings. In an odd twist, material by older artists is especially 
desirable, since their adult fans tend to buy music rather than download it 
illegally. 

“At some point it becomes irrational not to figure out a way to exploit 
this stuff if the parties involved will benefit,” said Greg Scholl, 
president and chief executive of the Orchard, a digital distribution 
company. “There’s no question this stuff is more saleable than it was.”

To get a sense of the value of historical musical performances, consider 
what Andrew Solt has made of the archive of “The Ed Sullivan Show.” As a 
director and producer of rock documentaries, Mr. Solt kept returning to the 
Sullivan archives to license footage from Mr. Sullivan’s family, which 
owned the rights to the program under the terms of Mr. Sullivan’s deal with 
CBS. 

Mr. Solt’s licensing costs became so expensive that he inquired about 
buying the rights to the show, which he did in 1990, for a price said to be 
below $10 million. “I paid every penny I had to lawyers and borrowed all 
the money from a bank,” he said. “I would wake up at night and say, ‘What 
did I do?’ ”

But it seems that Mr. Solt got a very good deal. He has used the material 
in the archives to produce television specials and DVDs, but he said that 
the most valuable material is the musical performances, including 
historical appearances by Elvis Presley and the Beatles. 

He has released a DVD featuring the Beatles’ performances on the show, 
which he said has sold 200,000 copies; last fall, he released a similar 
Elvis package that he said has already sold 100,000 copies; and he licensed 
the material for “Ed Sullivan’s Rock ’n’ Roll Classics,” a box set 
distributed by Rhino, a subsidiary of Warner Music. 

Mr. Solt, who also bought the rights to “Don Kirshner’s Rock Concert” with 
a partner a few years ago, believes such content will eventually generate 
even more revenue on the Internet. 

“You won’t need Andrew Solt to make you an ‘Ed Sullivan Show’ anymore,” he 
said. “You’ll be able to go to a menu, choose your own favorites and use 
what you want.”