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What follows is a collection of essays about the biz, articulated through the legal and cultural legacies its inhabitants leave behind. Not "legal writing" or "music writing," per se (nor is this really a "blog"), posts draw from history and art, sociology and psychology, economics and evolution, and discuss music, law, and life writ large. Extensive footnotes at the end of each entry provide sources for assertions made and suggestions for furthering research.

Various people with varied motives, backgrounds, and abilities work together to give us the variety of sounds that shape the way we experience our world. This page is but one approach to understanding that process (and its result).


(If you're interested in contributing, email Loren to learn how.)


blogHeaderLoren Wells
Too Legit to Acquit: Lyrics, Life and Law
Kill a career one day.
Antavio Johnson is in jail. And his mouth is shut. If you knew him, you'd be unsurprised by the former, but baffled by the latter. Because while Antavio's the type of guy you'd expect to find doing time, he isn't wont to be very quiet. For now, at least, he's got no choice.

Several years ago, Antavio Johnson—known street-side by the hip-hop moniker T.O.—released a song entitled "Kill a Cop One Day." Its message is straightforward. Its title provides proper summary.

The sentiment surely isn't novel; Ice T's rap-rock crossover band, Body Count, famously released "Cop Killa" in 1992, much to funders' chagrin. But Antavio went much further. Not just rapping abstractly about killing cops, he rapped definitively about killing specific cops. He named them and included demands: free his friend "Chico," leave him alone. If not, one day…

By an odd twist of statutory fate, Florida had legislation to fit the bill. Convicted of threatening harm against public servants with the intent to influence their official activities, he was handed a two year stint. Though First Amendment scholars barked protestation, the judgment seemed to fit the facts. (If lyrics were protected without exception, conspirators could evade guilt simply by scheming in rhyme.)

Such outcomes should be flattering, really. Rappers tout gangster cred, with the hope they'll be believed. True-to-life

Read More ...
Kill a career one day.
Antavio Johnson is in jail. And his mouth is shut. If you knew him, you'd be unsurprised by the former, but baffled by the latter. Because while Antavio's the type of guy you'd expect to find doing time, he isn't wont to be very quiet. For now, at least, he's got no choice.

Several years ago, Antavio Johnson—known street-side by the hip-hop moniker T.O.—released a song entitled "Kill a Cop One Day." Its message is straightforward. Its title provides proper summary.

The sentiment surely isn't novel; Ice T's rap-rock crossover band, Body Count, famously released "Cop Killa" in 1992, much to funders' chagrin. But Antavio went much further. Not just rapping abstractly about killing cops, he rapped definitively about killing specific cops. He named them and included demands: free his friend "Chico," leave him alone. If not, one day…

By an odd twist of statutory fate, Florida had legislation to fit the bill. Convicted of threatening harm against public servants with the intent to influence their official activities, he was handed a two year stint. Though First Amendment scholars barked protestation, the judgment seemed to fit the facts. (If lyrics were protected without exception, conspirators could evade guilt simply by scheming in rhyme.)

Such outcomes should be flattering, really. Rappers tout gangster cred, with the hope they'll be believed. True-to-life hardness is a virtue in the streetwise world of gangsta rap, and Florida police believed Antavio.

His chapter is one-of-a-kind, but part of a larger story, one of artists finding themselves unluckily convincing: too legit to acquit. It's an odd conundrum. Artists carefully construct public personas and seek legitimacy. But in court, sometimes, their only defense is phoniness.

By then, of course, it's usually too late.

You're the one who did it to you.

Unfortunately, the "PCP made me eat her"
defense holds little clout.
In April of 2002, L.A.P.D. officers came upon a man wandering the midday streets. He was naked, covered in blood, and babbling incoherently, with raw meat dangling from his goatee. It was the beginning of the end for a rapper called Big Lurch (née Antron Singleton), and the first step in a self-fulfilling prophecy of biblical irony.

By 8:30 that morning, Antron was already amped on PCP, visiting a female friend, and seeking sexual favors. As you'd guess, things didn't go as planned (certainly not for her).

Though difficult to precisely divine, basic facts are rather clear. Lurch became enraged and stabbed his uncooperative companion. With "angeldust" presumably at the helm, he reached into her freshly lacerated abdomen (possibly while she was still alive), removed a few inner bits, and took a bite or two.

After hastily cleaning the scene, he bolted out the back, and was soon spotted by police.

Amidst an already gruesome trial, Black Market Records released Lurch's debut album, "It's All Bad." His lyrics contained expectable gangland posturing. And much more.

In one surprisingly catchy song, Big Lurch openly endorsed cannibalism. He compared himself to slasher flick villains, vampires, animals, and serial killers, ending verse and chorus with bizarrely appropriate warnings: "If you wake up in a puddle of blood . . . I did it to you." (The latter half supplies the song's title.)

Though not always poetic, Lurch's lyrics are certainly believable—he actually lived them—and YouTubers' comments display an oddly understandable admiration for such legitimacy. "[M]uch respect to mothafuckin Big Lurch," said one, "even if it is some bad unfortunate shit."

At trial, however, believability and respect were the last things he wanted.
Good guys don't wear white.
Big Lurch's YouTube admirers represent us all, to some extent. Something's oddly transfixing about criminality; through adulation we ourselves become "criminals once removed, intimations of crime without the thing itself," in the words of writer John Leland. In fact, long before T.O. and Big Lurch sought stardom through outlawdom, musical fascination with creative goons was long established.

In Georgian England, best-selling popular songs weren't just penned by criminals, but "written by the wretched culprit the night previous to his execution."

American blues artists' sordid lives also met marketplace demand. None illustrate the phenomenon quite like Huddie Ledbetter, known professionally as "Lead Belly."

Huddie's big break came in 1933, during the third of ten years at Angola prison—where he'd earlier gained freedom, well into a thirty-year sentence for murder, by serenading Texan governor Pat Neff—when folklorist/musicologist John Lomax heard in Leadbelly's hardened wail the potential for monetary success. He was right, and a second governor freed the convicted crooner once more.

Spotlighted and unshackled, Huddie himself sought the straight and narrow. But career advisors kept his image illicit, limiting his repertoire to chain-gang melodies, ensuring he donned only prisoners' garb publicly (Huddie preferred dapperness), and even fabricating quotes of crimes past. Noncriminal tendencies worried Lomax, who believed them counter to Lead Belly's "money value." "[H]e will lose his charm," complained Lomax tellingly, and become "ordinary."

Lead Belly's life underlies the unfortunate fates of T.O. and Big Lurch. Because legitimacy sells, it's actively incubated, exaggerated, and fabricated. Artists like Lead Belly—sometimes entire genres—imbue themselves in dastardliness and become slaves to others' expectations. Thus, as Leland observes, they are, in the end, "not in control of their own myth."

But with such impressive profit within reach, losing control mightn't seem that bad.

So the cycle continues, even in the oddest of places.

Dungeons and dragons and murder (oh my).

Paul Stanley is "Starchild,"
Ace Frehley is "Spaceman."
Black Metal musicians look more like
"Guy Fake-Swordfighting on the Quad."
Gloomy Norwegian winters (springs, summers, and falls, too) produce artistic outlandishness and brutish competition for legitimacy that equals, perhaps outdoes, that in the U.S.

But Norwegian bad guys don't rap, sing the blues, or claim street allegiance. They play "extreme metal". And they worship Satan.

Between 1992 and 1996 over fifty of Norway's oldest wooden churches burned (some to the ground). At least three people died violently; two knifed feverishly without provocation. As media inquiries and official investigations revealed, local "Black Metal" artists weren't merely singing satanic praises, they were living them too.

When a Tolkein-toting 21-year-old musician, "Varg" Vikernes (also known as Count Grishnackh), went to prison in 1994 for church arson and murder—after bragging via newspaper and documenting his handiwork (i.e. smoldering church ruins) on album sleeves—public obsession was unavoidable. The bar was set for competitors to play along.

Soon thereafter nearly all "the major Norwegian Black Metal bands were [on] hiatus, their key members facing prison sentences for arson, grave desecration, and murder."

In years to follow, hate peddlers like Mayhem, Burzum, Emperor, and others, segued their onetime miniscule genre into an international mass. Like John Lomax observed with Lead Belly's successes, taboo proclivities can be commercial endeavors to the last.

But when Black Metal antics began resembling "a show [or] a scary bit of theater," wars of words erupted between bands. Accusations of farce met boasts of legitimacy; action was the only proof.

Soon Germans and Swedes produced violence of their own. By 2005, Norway's satanic majesty, Gaahl, allegedly "tortured [one] victim for six hours while collecting his blood into a cup," singing pretty Norwegian lullabies as he worked. Un-coincidentally, Gaahl's band's name, Gorgoroth, literally means "terror."

Like Varg before, he soon faced such sentiments in court.

Thus the question asks itself: to what extent can artists' self-perpetuated myth be used as fodder when, whilst under the heat, they seek it buried once and for all?

See evil, hear evil, but don't speak it.
Antron Singleton was none too happy to hear "I Did It to You" discussed at the bar. But arguing intoxication deprived him of requisite intent, Big Lurch invited prosecutorial retort and lyrical examination. The government's "drug recognition expert" opined that substances were not to blame; Lurch was plainly keen on gore and more before voluntarily downing PCP. And as investigating officers observed, the lyrics sounded like "a blueprint for the crime."

Varg's grandiloquent media blitz also surfaced as evidence at trial. He too contested, asserting he'd lied about razing churches, seeking P.R. for musical products. But impossibly intimate knowledge, like that of decapitated rabbit carcasses found by authorities on church steps (which were never publicized), forced opposite conclusions. In blaming conspiratorial intermeddling by Jews and Freemasons, his credibility wore thinner.

Others have tried keeping hard-earned reputations out of court, and been equally unsuccessful. Several quick examples suffice.

When rapper Project Pat, facing weapons charges, claimed he didn't even like guns, much less own any, inquiry into songs he'd written extolling their many uses and virtues was held fair game. And as a self-described "gangsta rapper," Pat couldn't prevent prosecutors from repeating the phrase themselves, even if it was, perhaps, prejudicial.

Mac the Camouflage Assassin, on trial for murder, argued that government lawyers couldn't use his stage name during opening and closing statements, nor recite lyrics he'd penned, like "murder, murder, kill, kill." But the words weren't offered as "evidence," and, with or without them, held the court, Mac was clearly guilty.

Though facts and rulings vary per situation, they have much in common. Artists clearly define themselves through lyrics, personality, and public posture.

They simultaneously (though unintentionally) define themselves legally, too.

On eating cake and people.
Antavio Johnson's conviction was an oddity.

When "Kill a Cop One Day" reached City Hall and investigators pinpointed its author, Antavio was already in jail, incarcerated for entirely unrelated reasons and facing rather steep punishment. Pleading guilty to corruption of public officials arguably retrieved lesser reprisal than he'd otherwise warranted.

So unlike comrades discussed above, his lyrical claims served him well, earning P.R., demonstrating legitimacy, and getting the better of the bargain in the process. Normally, of course, artists aren't so lucky.

Antavio is an exception to a very simple rule that can be succinctly stated. Fringe musicians choosing to benefit—monetarily and reputationally—from eviler-than-life appearances, can't simply backtrack when convenience calls. "Just kidding" won't suffice in courts of law. Convicted gangsta rappers like Mac and Pat provide examples.

In short, you can't have your bullets and shoot them too.

Artists understandably want it both ways. They desire success and the freedom to enjoy it, to satiate crowds, but to please themselves as well.

In providing access to villainous "otherness," becoming the people we want to be but are afraid to become (to paraphrase Robert Warshow), Big Lurch, Count Grishnackh, Lead Belly and friends, cede their world, and their fate, to us, to consumers. John Leland noted that the outlaw's mystique "owes its currency to the public." Lomax knew it, and fought to keep Lead Belly in line. Gaahl saw it too. "You cannot put down your sword," he said. "Because then you lose."

Juries, it turns out, and judges, are cross-sections of that same public. Those who condone are, on a macro level, the same as those who condemn.

So once Black Metal murderers and gangbanging rappers win us over, convince us of their legitimacy, they've already, in way, presaged their own impending doom.

But that, of course, seems only appropriate.



Re-Compress ...
NOTES AND SOURCES ( click to reveal )
Kill a career one day.
Antavio Johnson's story is widely available online. See, e.g., the Polk County Sheriff department's press release, dated July 30, 2009, available at their website (http://www.polksheriff.org/NewsRoom/News Releases/ Pages/LakelandManSentencedtoTwoYearsStatePrisonforThreateningTwoPoliceOfficers.aspx); the transcript for National Public Radio's "Talk of the Nation," discussing the case, hosted by Lynn Neary and featuring First Amendment scholar Anita Allen, which aired August, 20, 2009, available at their website (http://www.npr.org/templates/story/story.php?storyId=111742102); and the Orlando Sentinel's contemporaneous report, posted online August 1, 2009, and still there (http://articles.orlandosentinel.com/2009-08-01/news/rapper_1_johnson-rap-song-lyrics).

The legislation, Florida Statutes § 838.021, can be accessed directly at http://www.myfloridahouse.gov/filestores/web/statutes/fs07/ch0838/Section_0838.021.HTM. The relevant portions of the statute, read together, spell out the crime, which reaches anyone who "threatens unlawful harm to any public servant . . . with the intent or purpose . . . [t]o influence the performance of any act or omission . . . within [the public servant's] official discretion . . . or [done] in performance of a public duty." According to the act, the government need not show that the offender's threats related to acts actually "pending" before the public servant, and need not show the requested acts could "properly be brought before him or her." Thus, it seems irrelevant that Antavio's actions were unlikely to reach the public officials referenced in the song.

Comments regarding hip-hop artist's competition for legitimacy are taken from general understandings and awareness of the business, which most of us have. However, sources exist aplenty. See, e.g., DAN CHARNAS's in-depth examination IN THE BIG PAYBACK: THE HISTORY OF THE BUSINESS OF HIP-HOP, 355-532 (2010), spanning two chapters, "Cops & Robbers" and "Keeping it Real"; and, generally, TRICIA ROSE, THE HIP HOP WARS: WHAT WE TALK ABOUT WHEN WE TALK ABOUT HIP HOP AND WHY IT MATTERS (2008).

You're the one who did it to you
Big Lurch's lawsuit is People v. Singleton, 2005 WL 699307 (Cal. Ct. App. 2005), which provided all the facts used to tell the story. Its holding is discussed later, in "See evil, hear evil, but don't speak it."

The YouTube comment was left at http://www.youtube.com/watch?v=GSnoPxIHElQ.

Good guys don't wear white.
JOHN LELAND's observations about criminality in commercial music were found in his book, HIP: THE HISTORY (2004), at 227, within a Chapter called "Criminally Hip: Outlaws, Gangsters, Players, and Hustlers," discussing outlaw archetypes in popular culture from Robin Hood, Billy the Kid and Jesse James to William Boroughs, Iceberg Slim, Tupac and Biggie, Johnny Cash and more.

Purchasers' taste for damned prisoners' verses was found in PAUL DU NOYER, IN THE CITY: A CELEBRATION OF LONDON MUSIC 13 (2009). One specific execution in 1707—of a house robber named Jack Hill—was consistently re-hashed over the years in different, similar songs.

Lead Belly's story has been told many different times. Its general gist and most specifics came from GREG MILNER, PERFECTING SOUND FOREVER: AN AURAL HISTORY OF RECORDED MUSIC (2009). Lead belly's early years and first incarceration are discussed around 84-85; John Lomax's discovery at 87-88. However, that he was freed by a second governor came, not from MILNER, but from THE ROLLING STONE ENCYCLOPEDIA OF ROCK N' ROLL 553 (eds. Holly George Warren and Patricia Romanowski, 2009). MILNER again provided the facts and quotes for Lomax's tight control of Lead Belly's public persona, at 89. Another great discussion of the Lomax-Lead Belly discussion is in MARYBETH HAMILTON, IN SEARCH OF THE BLUES (2008)

Leland's quote about outlaws not controlling their myths is in LELAND, at 237.

Dungeons and dragons and murder (oh my).
The "fifty churches" figure can be heard in an interesting Norwegian Documentary, SATAN RIDES THE MEDIA, released in the late 1990s in Norway, and available with subtitles freely on Google Video. However, much of the general information can also be found in the subject's recognized treatise, MICHAEL MOYNIHAN AND DIDRIK SODERLAND, LORDS OF CHAOS: THE BLOODY RISE OF THE SATANIC METAL UNDERGROUND (2003). In "Satan Rides the Media," documentarians paid close attention to the facts of Varg's initial contact with the press, and included interviews with the journalist who broke the story, Finn Bjorn Tonder. LORDS OF CHAOS is a little disjointed in its order, but several chapters discuss the events and proceedings themselves at length.

"[M]ajor Norwegian Black Metal bands [were] facing prison sentences": MOYNIHAN AND SODERLAND, at 138.

Though Jorne Thunsberg, the guitar player in Hades said that "Black metal should be more like a show, it should be more frightening, like a scary bit of theater," (in SATAN RIDES THE MEDIA), he still believes Norway "should not be a Christian nation." Thunesberg's approach to the genre as a form of showmanship, not a restatement of reality, curried Varg Vikernes's disfavor; in Varg's initial newspaper interview he offhandedly referred to Thunesberg as a "less intelligent individual." MOYNIHAN AND SODERLAND, at 97. The resulting divide between Norwegian bands is discussed at 136-42.

German "Black Metal" murderers and their band (Absurd), and Swedish church-burners and grave desecrators, among others, are discussed at length in MOYNIHAN AND SODERLAND at, respectively, 270-305 and 305-12. Other countries' involvement follows thereafter. Gaahl's six-hour torture was discussed at several points in VBS.tv's MUSIC WORLD: TRUE NORWEGIAN METAL (2008), available online at http://www.vbs.tv/watch/music-world/true-norwegian-black-metal. Gorgoroth's meaning from the documentary as well.

See evil, hear evil, but don't speak it.
Big Lurch's case, as referenced above, is People v. Singleton, 2005 WL 699307 (Cal. Ct. App. 2005). The precise issues at trial regarding the lyrics were twofold: 1) was the government expert witness's testimony invalid because he relied on Lurch's lyrics in forming his opinion as to Lurch's culpability, and 2) were the lyrics inadmissible hearsay? As to the former, the court held that, because the defense's expert testified that Lurch was unaware of his actions and incapable of forming the requisite intent, the government could present rebuttal evidence. Regarding his opinion about the effects of drugs on Lurch's actions, the court held, inter alia, "an expert is entitled to rely on a defendant's statements as one of the bases for the expert's opinion," even if those statements were inadmissible hearsay. As to the latter point, the court classified the lyrics under the admissions exception to the hearsay rule. Much of this holding seems questionable.

Varg's "grandiloquent media blitz" included a multiple-page story in Kerrang! Magazine, one of the largest-circulation metal publications, and is detailed in MOYNIHAN AND SODERLAND, 96-108. The trial itself is largely discussed at 136-49. The "evidence at trial" included an article from Bergens Tinder, a small Norwegian tabloid, as well as statements he'd made to the media and other Black Metal figures (140). Varg's current interpretation of the set of events is described at 145-49, including his bizarre obsession with Jews and Freemasons. The decapitated rabbit anecdote was told by Finn Tonder, the journalist of the original article, in SATAN RIDES THE MEDIA.

Project Pat's case is U.S. v. Houston, 205 F.Supp.2d 856 (W.D. Tex. 2002), affirmed by 110 Fed. Appx. 536 (6th Cir. 2004).

Mac the Camouflage Assassin's case is Phipps v. Wilkinson, 2008 WL 2233968 (E.D. La. 2008).

Two other relevant cases are Com. v. Ragan, 538 Pa. 2 (Pa. 1994), in which lyrics were used to impeach a local rapper's claims he was just a peaceful artist and student; and State v. Hayward, 963 P.2d 667 (Or. 1998), where evidence of the defendant's obsession with "death metal" music was admitted to prove his motive, since he listened to albums that discussed grotesque murders to prepare himself for committing his own, and audibly made "death metal growls" as he attacked a convenience store clerk with a knife. There are certainly others.

On eating cake and people.
The anecdote that Antavio Johnson actually avoided harsher punishment by pleading guilty to corrupting public servants was provided by Anita Allen on "Talk of the Nation," referenced above.

According to JOHN LELAND, HIP: THE HISTORY, at 236, Robert Warshow originally said: "criminals embody both ‘what we want to be and what we are afraid we might become.'" That outlaw appeal "owes its currency to the public" is in LELAND, at 237. Gaahl's philosophy on why he can't "put down his sword" was provided in TRUE NORWEGIAN METAL.
 


blogHeaderLoren Wells
The Drummer's Beat: A Noneconomic Look at Being Sampled
The situation is a no-win (for those who don't win, at least).
Why Stetsasonic's 1988 single, "All That Jazz," is rarely cited or discussed is a mystery. Its Wikipedia entry is uncannily sparse. Google searches return nothing but ring tones, lyrics, and (presumably illegal) "free mp3s." Perhaps the reference is just too obvious? That seems unlikely.


His all-time favorite sample: gavel patter.
Three years before the Southern District of New York skeptically heard Biz Markie's formal defense of unlicensed sampling (and rendered its famously biblical decree, "thou shalt not steal"), Stetsasonic addressed the virtues of the practice in song. "James Brown was old," they said, out of style until "Eric and Rakim came out with 'I Got Soul,' [bringing] back old [music] people could've forgot." Not thieves, they're artists, historians, and curators at once.

Modern legal scholars seem keen on Stetsasonic's arguments. Sampling recycles music in new ways, creating entirely new, innovative artistic works, and reintroducing outdated artists to new generations. Girl Talk and the flowering of hip-hop are universally cited as proof.

These arguments make sense, and they seem sound. But they're not. Sampled artists are rarely resurrected, despite the gospel's predictions. "All That Jazz," for example, was built on an obscure funk sample: Banbarra's 1975 record, "Shack Up." The song didn't bring them back, though Stetsasonic claimed it should. Banbarra were forgotten anyway.


Read More ...
The situation is a no-win (for those who don't win, at least).
Why Stetsasonic's 1988 single, "All That Jazz," is rarely cited or discussed is a mystery. Its Wikipedia entry is uncannily sparse. Google searches return nothing but ring tones, lyrics, and (presumably illegal) "free mp3s." Perhaps the reference is just too obvious? That seems unlikely.


His all-time favorite sample: gavel patter.
Three years before the Southern District of New York skeptically heard Biz Markie's formal defense of unlicensed sampling (and rendered its famously biblical decree, "thou shalt not steal"), Stetsasonic addressed the virtues of the practice in song. "James Brown was old," they said, out of style until "Eric and Rakim came out with 'I Got Soul,' [bringing] back old [music] people could've forgot." Not thieves, they're artists, historians, and curators at once.

Modern legal scholars seem keen on Stetsasonic's arguments. Sampling recycles music in new ways, creating entirely new, innovative artistic works, and reintroducing outdated artists to new generations. Girl Talk and the flowering of hip-hop are universally cited as proof.

These arguments make sense, and they seem sound. But they're not. Sampled artists are rarely resurrected, despite the gospel's predictions. "All That Jazz," for example, was built on an obscure funk sample: Banbarra's 1975 record, "Shack Up." The song didn't bring them back, though Stetsasonic claimed it should. Banbarra were forgotten anyway.

In this, they are not alone. Like all bands, they're part of a greater story. Commentators spend so much time idealizing the culture of the underdog sampler (like Girl Talk), they've overlooked the culture of the underdog samplee (like Banbarra). This is that story, the untold story of the drummer's beat and Banbarra's forgotten brethren. Of which there are many.

The least (perhaps the most) we can do now, is talk about them. So that's exactly what I'll do.

The Drummer's Beat vs. Everyone.
"Dance to the Drummer's Beat" is not what you'd call a "hit record." Though it sold perhaps 100,000 copies when first released in 1978, today it's an obscurity. It has left no visible mark on music, culture, or history. But it certainly left an audible one.

"The Drummer's Beat" provided rhythmic samples for over forty tracks, beginning in the late 1980s, including those by UTFO, 2 Live Crew, N.W.A, DJ Jazzy Jeff & the Fresh Prince, Run-D.M.C., C+C Music Factory, Public Enemy, DJ Shadow, Fat Joe, the immutable Michael Jackson, and many more.

Herman Kelly, the song's creator, is currently broke, broken, and forgotten, living in Detroit.

Since at least 1991, Herman has kept alive an unprecedented legal effort, suing numerous publishers, labels, and artists (including the early '90s duo 2 Hyped Brothers and a Dog), for copyright infringement. Few musicians appear in court as often. But fewer have such dreadful track records.

See, Herman sucks at litigating.

Not a single case decided by a court of law has ended in his favor. It's entirely his own fault, too. Always appearing "pro se," he tends to ditch scheduled conferences. He presents incomplete legal accusations, and has a penchant for formality disasters; he once whited-out parts of a trial memo so he could use it again in another jurisdiction (look up "res judicata" if you need to). L.L. Cool J's "Mama Said Knock You Out" didn't sample Herman, though he sued L.L., claiming it did, in three nearly identical cases. On multiple occasions he sued defendants holding legitimate licenses.

So if Herman suffers from injustice, it's by his own hand. Legally speaking, that is.

Injustice comes in many forms, however.

The "trickle down" theory of fame.
When legal scholars and popular commentators speak of sampling, they do so in very specific manners and with specific implications, pushing Stetsasonic's argument by highlighting independent re-mixers with overflowing ingenuity but whose livelihoods are unjustly jeopardized by legal action, like SilviaO, Negativland, Dangermouse, most hip-hop pioneers, and, as always, Girl Talk.

Absurd music company litigation provides extra kindling, of course, like Universal suing the family of an eighteen-month old boy when they posted him dancing to Prince on YouTube, or Bridgeport Music, owner of many George Clinton-related compositions, flaying the industry with hundreds of complaints at once.

An overly litigious music industry is an off-putting thing, and in that way, the Banbarras and Herman Kellies of the world are no different than Bridgeport and Universal, seeking monetary compensation through (sometimes pointless) litigation.

(David Batiste and the Gladiators, a New Orleans funk band, sued P.M. Dawn. South African band Henry Ate, through their music publisher, sued Lil' John. Cymande, a 1970s British funk group, sued the Fugees. The Honey Drippers' publisher sued Run D.M.C. Smokey Johnson and Syl Johnson sued Silkk and Cypress Hill.)

A decent chunk of these suits are frivolous. But the plaintiffs' roster brings Stetsasonic's broken promises to mind. Samples were alleged to help those sampled, to "bring them back." Yet these artists are mostly known only to people who only know them mostly as samples. That's exactly the opposite of how "All That Jazz" said it would go down.

Should we be surprised? No.

Ancestor worship (or ancestor abuse).
Stetsasonic's claim that "sampling benefits the samples" is a nice theory, but a bit like Reaganomics. Drizzle some fame on samplers, and it "trickles down" to sampled masses below. That never works. Celebrity is hoarded by the upper echelon, and—as with Reaganomics—nothing of substance ever reaches the intended recipients.

Hip-hop historian Greg Tate calls sampling—perhaps the entire rap genre—a form of "ancestor worship." Colleagues agree, it's "a vehicle to recover, reclaim, and pay homage to earlier DJs, recording engineers, and African-American performers" (just like Stetsasonic said).

But ancestor worship isn't about using the past for our own purposes. It's about benefiting others, working to "ensure the ancestors' continued well-being and positive disposition."

In the ancient Levant, families would literally preserve the skulls of deceased kin, plaster on fake faces (using seashells for eyes), decorate them, and then display the heads in their homes. Egyptians took ancestral veneration to cultic extremes: families with proper means ritually provided necessities and set up fully-stocked, lavish dining tables for famished corpses. Even nearby statues remained well fed.

The "ancestor worship" analogy is weak at best. Unlike families living amid continual reminders, obscure and un-credited samples keep forebears out of sight. And while mummies slept beside a glutton's dream, samplers make no similar provisions today.

In 1996, when the Fugees released "The Score," their sextuple-platinum sophomore album, they had no intent on letting anyone—neither Cymande, who they sampled, nor the listening public—know where the beats and melodies originated. For over ten years thereafter, the Fugees and their label actively sought to suppress Cymande's legal bout for undeniably deserved acknowledgement.

That's more like "ancestor abuse" than anything else.

Funk bands are not gadgets.
Never receiving credit for creative contributions is one thing. And it's bad. But losing control of artistry altogether is worse.

Much time is spent discussing the artistic visions and transformative contributions of "remix culture." Theirs is an act of defiance, taking "somebody else's expression of reality"—in the words of KRS-1—"mutilating it" and giving it back. It's like a higher calling.

This rings true to many, because making music isn't just for fun or money. It's a purpose. John Coltrane, timeless innovator and godfather of "cool," speaks for anyone who's ever created anything artsy: "it's a spiritual expression of what I am—my faith, my knowledge, my being."

Better yet, it's a chance to "speak to listeners' souls."

Throughout history, artists have sought to express themselves in carefully crafted ways. For this reason, they've gasped at loss of control. Girltalk wants his music to be understood, appreciated, and legitimated "as is." What's so odd about his samples wanting the same thing?

Jaron Lanier—pioneering technological guru, "father of virtual reality," and proud musical composer—certainly does. Making music, he writes, is about artist and listener having "a chance at a connection." So when third parties plug the result into some "compound product" without consideration for his artistic motives, it deprives him—never mind the masher—of his chance to reach an audience with his own voice. Heart and soul become bit and byte; "it is no longer an expression of [his] life."


If I can't have him, no one will.
Fifteenth century composer Josquin des Prez pleaded for musicians not to alter his scores. In the 17th century, Miguel de Cervantes killed Don Quixote rather than have him "re-mixed," after an illicit Quixote sequel surfaced in Tarragona. Sir Arthur Conan Doyle knocked-off Sherlock Holmes for precisely the same reason.

Everyone runs into problems, both samplers and samplees, hoping to reach audiences with their own, unique voices. And that's not really an economic concern. It's an artistic one.

Oddly, they're alike in that way.

Ridiculous lawsuits prove nothing.
The story of "The Drummer's Beat" isn't a conclusion on its own. If anything, it's a counterpoint, a necessary balance to trumped-up claims of salvation through sampling. When dealing with mash-ups, re-mixes, crowd-sourcing, the whole "2.0" thing, people tend to get carried away. Commentators—particularly of the legal variety—polarize and pick a side.

One noticeably heated reply came from William Patry, well known legal scholar and copyright expert. In his recent book, "Moral Panics and the Copyright Wars," Patry sought to illustrate how corporations utilize hyperbolic moral accusations to ensure public sympathy, by using words like "pirate," for example. But he was comically unable to stop from doing exactly what he condemned in others. Bad guys don't just get carried away with analogies, he writes: "In their religious zeal to claim every tot and tittle of culture, copyright dwarves can see no further than their own megalomania, impoverishing all of us in the process." I counted the overblown metaphors in that sentence, and I recommend you do the same.

Stetsasonic's discussion back in 1988 was necessary. With a new genre gaining public appeal, soon to overtake popular culture, their place in music history—including "All That Jazz" and its message—was irreplaceable. But with twenty years' hindsight and new sample-based musical stylings filling iPods worldwide, what we need isn't vehemence. It's honesty.

Sampling doesn't boost obscure funksters' careers, especially when they're never given credit. The story is more complicated than big corporations suing indie geniuses. It's not about "ancestor worship," either. And while unrestrained borrowing may give 2.0 artists freedom to create, it doesn't honor everyone's artistic intentions.

There are positives to the spike in re-mix culture, and there are negatives, just like everything else. Emotional pleas drive idealistic movements and ensure book sales. But they do nothing for real, living people, like Herman Kelly, who know first hand how ideals fall short.

Sure, making sense of the future (personally) can be done theoretically.

But making the best of it (collectively) requires objectivity.


Re-Compress ...
NOTES AND SOURCES ( click to reveal )
The situation is a no-win (for those who don't win, at least).
The title of this section is taken from a lyric in "All That Jazz.," lyrics for which can be found with a simple internet search, e.g., http://www.metrolyrics.com/talkin-all-that-jazz-lyrics-stetsasonic.… .

Biz Markie's biblical prohibition was taken from Grand Upright Music Ltd. v. Warner Bros. Records, Inc., 780 F. Supp. 182 (S.D.N.Y. 1991), which is among the most discussed early sampling cases. However, it wasn't Biz's first, nor his last. In 1990, Tuff City Records (owner of some Grandmaster Caz compositions) sued Biz for using Caz's backing tracks on a song titled almost identical to Caz's original. As in every case, the court found Biz liable. Grand Upright v. Warner Bros., while not the first case to litigate a sampling dispute, was the first case to discuss the practice at length. It is also the opinion where Biz presented his infamous defense, which the court restated as follows: "stealing is rampant in the music business and, for that reason . . . should be excused." Obviously, the court not only disagreed, but offered the above-mentioned dogmatic warning. Biz's sampling problems, however, never went away; he was sued once more in 1996 (Collister Alley Music, Inc. v. Warner Bros. Records Inc, 1996 WL 457294 (S.D.N.Y. 1996)) and again in 2006 (Young Manny Scretching v. Bizmont Entertainment, LLC, 2006 WL 1642336 (E.D. Pa. 2006).

My reference to "modern legal scholars" is intended to be broad. For a more specific discussion of their writings, and my reference to their reverence for the "underdog sampler," see the notes to The trickle down theory of fame and Ancestor worship (or ancestor abuse), which contain detailed discussions.

The Drummer's Beat vs. Everyone.
Herman Kelly appears in The Discography eight different times, more than most other artists. Little information is available online, so much of the information in this section is pulled from facts and anecdotes provided in court opinions, noted specifically below.

Estimations that "Dance to the Drummers Beat" sold 100,000 copies was found in from Kelly v. Two Live Crew, 1991 WL 184299 (6th Cir. 1991), though its veracity is in doubt.

The list of "over forty tracks" in which "Dance to the Drummer's Beat" was supposedly sampled, was taken from whosampled.com.

Herman's current location was discovered through various internet searches, phone book look-ups, etc. To keep his privacy, I'm not going to post my specific source or his contact information.

The complete list of final dispositions in Herman's lawsuits, including the artists he alleged sampled his works, include: Kelly v. Two Live Crew, 1991 WL 184299 (6th Cir. 1991) (2 Live Crew); Kelly v. L.L. Cool J., 23 F.3d 398 (S.D.N.Y. 1993) (L.L. Cool J and Marley Marl's publisher); Kelly v. Broadcast Music, Inc., 1994 WL 169716 (6th Cir. 1994) (no artist specified); Kelly v. Deco Records, 1995 WL 5864 (4th Cir. 1995) (2 Hyped Brothers and a Dog); Kelly v. MCA Music Publishing, Ltd., 1997 WL 113815 (S.D.N.Y. 1997) (no artist specified); Kelly v. Broadcast Music, Inc., 2000 WL 12112 (S.D.N.Y. 2000) (L.L. Cool J); Kelly v. EMI Blackwood Music Inc., 2007 WL 2327059 (S.D.N.Y. 2007) (no artist was specified, but Amerie released a song called "One Thing" in 2005 containing a James Brown sample, which Herman often thinks are his).

Regarding Herman's problems in court: he missed conferences/deadlines in the EMI (Amerie) and BMI lawsuits; he whited-out his trial memo in the 2 Hyped Brothers and a Dog lawsuit, which was dismissed for "res judicata"; he failed to allege jurisdiction in his MCA suit; and sued parties with valid licenses in both 2 Hyped Bros. and 2 Live Crew cases. Though only two L.L. Cool J suits appear in this database, the latter references a third, which is unavailable. The only favorable holdings Kelly ever received, in his first suit against L.L. Cool J, regarded Defendants' summary judgments on copyright and fraud claims, which were denied. Of course, Kelly later lost on the merits anyway.

The "trickle down" theory of fame.
"When legal scholars and popular commentators speak of sampling…": Personally, I feel this observation hardly needs support, since the discussions are so common. However, the prototypical example is LAWRENCE LESSIG, REMIX: MAKING ART AND COMMERCE THRIVE IN THE HYBRID ECONOMY (2008), which came out in the height of 2.0 excitement and reads as nothing short of a manifesto, discussing Girl Talk, SilviaO, Danger Mouse and Negativland, and whch provided the anecdote about Universal suing the boy's family (at 1-5). See also, DON TAPSCOTT AND ANTHONY D. WILLIAMS, WIKINOMICS: HOW MASS COLLABORATION CHANGES EVERYTHING 139-141 (2008), which contains another standard analysis.

Regarding Bridgeport's massive litigation campaign, "the original complaint, . . . alleged nearly 500 counts against approximately 800 defendants for copyright infringement and other state-law claims arising from music sampling," which was subsequently severed into 476 different court actions. Bridgeport Music, Inc. v. WB Music Corp., 520 F.3d 588, 589 (6th Cir. 2005).

The slew of cases references, and their holdings (briefly) are as follows: In Batiste v. Island Records Inc., 179 F.3d 217 (5th Cir. 1999), the Gladiators' publisher previously licensed P.M. Dawn to use their song "Funky Soul" as a sample. Batiste, the band's leader, sued under copyright, trademark, and state common law theories, but the court held his actions insufficient; the license barred copyright claims, the unlikelihood of consumer confusion barred trademark claims, and everything else fell outside the statute of limitations. In Urband & Lazar Music Pub., Inc. v. Carter, 2009 WL 799759 (E.D. La. 2009), the publisher for Karma Ann Swanepoel, lead singer and songwriter for Henry Ate, moved to compel Lil' Wayne and his associates to submit discovery materials bearing on gross revenues derived from his allegedly infringing "mix-tape." The court granted their motion. Cymande's lawsuit against The Fugees is discussed in the notes to Ancestor worship (or ancestor abuse), below. The Honey Drippers litigation was an absolute mess: plaintiffs were unable to show proof of copyright ownership, and the court found the Run D.M.C. songs allegedly sampling "Impeach the President" showed no signs of actual copying. Tuff 'N' Rumble Management, Inc. v. Profile Records, Inc., 1997 WL 470114 and 1997 WL 158364 (S.D.N.Y. 1997). The Syl and "Smokey" Johnson cases are too numerous to summarize here, but feel free to look them up in The Discography and research them yourself. Apparently, these artists are well-known as sources for hot samples; the cases above, for which court opinions were rendered, are merely representative.

Ancestor worship (or ancestor abuse).
The Tate quote was found in NEIL WEINSTOCK NETANEL, COPYRIGHT'S PARADOX 20 (2008), as was the supporting statement.

"Ancestor worship" was defined on http://en.wikipedia.org/wiki/Ancestor_worship. This definition closely mirrors the one on Dictionary.com.

References to ancestor worship in "the ancient Levant" were taken from AMIHAI MAZAR, ARCHAEOLOGY OF THE LAND OF THE BIBLE; 10,000-586 B.C.E., 47 (1992), and the Egyptian practices came from SIGFRIED MORENZ, EGYPTIAN RELIGION 203-204 (1992). Coincidentally, my undergraduate degree was in ancient history (my Honors Thesis was titled "Religious Diversity in the Ancient Near East"), so this area was of particular interest. Some ancient cultures literally believed that food offerings to dead relatives were necessary to keep them fed; i.e. without active veneration among the living, the dead would simply wander the underworld perpetually hungry, which is an interesting analogy for uncredited samples.

Cymande's lawsuit, Scipio v. Sony Music Entertainment, Inc., 173 Fed. Appx. 385 (6th Cir. 2006), is particularly telling. After the band learned of the Fugee's sample, they took legal action and a proposed settlement was drafted by the Defendants. Though Plaintiffs never signed the agreement, litigation dragged on, court-supervised negotiations went nowhere, and they eventually withdrew funds from an account set up by Defendants, according to the settlement. Defendants sought to dismiss the suit, alleging the withdrawal constituted ratification of the settlement. The court disagreed, and allowed the suit to continue. According to their Wikipedia entry they "reaped . . . financial rewards, as their music became a popular source for samplers." It fails to mention they weren't provided these rewards, but had to fight for years to get them.

Funk bands are not gadgets.
KRS-1's discussion of sampling was found on the DVD: Up From the Underground, TIME LIFE VIDEO: THE HISTORY OF ROCK N' ROLL (2004).

John Coultrane's discussion of musical purpose was found in a chapter appropriately called "Purpose," in TIM BLANNING, THE TRIUMPH OF MUSIC: THE RISE OF COMPOSERS , MUSICIANS AND THEIR ART (2008), at 115. The chapter presents musicians' move from the old patronage system to the commercial marketplace, discussing how artists' purposes behind the music changed, e.g., from pleasing patrons to selling sheet music to speaking "artistically."

Jaron Lanier's thoughts on controlling artist expression are in JARON LANIER, YOU ARE NOT A GADGET: A MANIFESTO 136-37 (2010).

Josquin des Prez's complaints about adaptation are in STUART ISACHOFF, TEMPERAMENT: HOW MUSIC BECAME A BATTLEGROUND FOR THE GREAT MINDS OF WESTERN CIVILIZATION 120 (2003). Don Quixote's untimely death, though perhaps common knowledge to anyone with a background in literature, was taken from ADRIAN JOHNS, PIRACY: THE INTELLECTUAL PROPERTY WARS FROM GUTENBERG TO GATES 9-11 (2010). That Sherlock Holmes died for the same reason, however, was verbally provided by CERL's office manager, Kate. I believed her, so I never looked it up.

Ridiculous lawsuits prove nothing.
The William Patry quote was found in WILLIAM PATRY, MORAL PANICS AND THE COPYRIGHT WARS 75 (2010). Patry is anything but alone in his approach. Jessica Litman, for example, once made the sweeping accusation that copyright is just "a device used by big conglomerates to put up unnecessary and unreasonable barriers between authors and the public." Jessica Litman, U.S.A. War and Peace: The 34th Annual Donald C. Brace Lecture, 53 J. COPYRIGHT SOC'Y U.S.A. 1, 19, 20 (2006). But similar statements can be found on almost any page of LESSIG, REMIX or NETANEL, COPYRIGHT'S PARADOX.

 


blogHeaderLoren Wells
Negligent Harmonies: Injured in the Audience
Riot on the Parisian Strip.
Philosopher and scientific revolutionary Robert Hooke knew the potency of music. Soothing music soothes people, he observed, while conflicting, inharmonic music accomplishes quite the opposite. In Denmark, it was said, court musicians' dissonant melodies once launched their king into a violent, murderous rage. Only when "soft, mild and effeminate" music resumed was the King "reduced to himself again."

No wonder the "tri-tone" musical interval—now common in atonal compositions and horror movie accompaniment—was long banned by the Catholic church and branded the diabolus in musica. Indeed, when classical composers first snuck discordance into public performance, Debussy's "Prelude to 'The Afternoon of a Faun'" and, shortly thereafter, Stravinsky's "Rite of Spring" caused riots at their early twentieth century Parisian debuts.

Today, "our own contemporary music seems designed to produce the same agitated effect on audiences." At ill-fated Woodstock '99, it was Limp Bizkit's song "Break Stuff"—typifying their musical genre's intellectual bounds—that was fingered as catalyst for the unacceptable crowd behavior that followed.

Limp Bizkit would surely deny intending or expecting such a result. But that's ridiculous.



Read More ...
Riot on the Parisian Strip.
Philosopher and scientific revolutionary Robert Hooke knew the potency of music. Soothing music soothes people, he observed, while conflicting, inharmonic music accomplishes quite the opposite. In Denmark, it was said, court musicians' dissonant melodies once launched their king into a violent, murderous rage. Only when "soft, mild and effeminate" music resumed was the King "reduced to himself again."

No wonder the "tri-tone" musical interval—now common in atonal compositions and horror movie accompaniment—was long banned by the Catholic church and branded the diabolus in musica. Indeed, when classical composers first snuck discordance into public performance, Debussy's "Prelude to 'The Afternoon of a Faun'" and, shortly thereafter, Stravinsky's "Rite of Spring" caused riots at their early twentieth century Parisian debuts.

Today, "our own contemporary music seems designed to produce the same agitated effect on audiences." At ill-fated Woodstock '99, it was Limp Bizkit's song "Break Stuff"—typifying their musical genre's intellectual bounds—that was fingered as catalyst for the unacceptable crowd behavior that followed.

Limp Bizkit would surely deny intending or expecting such a result. But that's ridiculous.

Igor Stravinsky denied it too. Following as he did Debussy's similarly violent debut, he nevertheless rejected having foreseen any potential upheaval, "[s]trange as it may seem." He was admittedly "unprepared for the explosion," which begs the question: should he have been better prepared?

(Legally, that is.)

Negligent harmonies, like those that enraged Denmark's king, offer an introduction, but not an answer. Answers require a little exploration and a quick story.

Dude looks like a "crazy."

They've had 'a few good years left in them' for twenty-five years.
Steven Tyler and Joe Perry, frontman and lead guitarist for Aerosmith, were once known—and proud to be known—as the "Toxic Twins." But as addictions grew, hit songs and celebrity faded, band members left, and it became apparent their careers—like their daily lives—lacked substance (uncontrolled, that is). In the late 1980s (to the surprise of many), they cleaned up, turned around, and regained their lost limelight.

But just because the band watered down and started thinking positive, doesn't mean the audience did too.

According to Linda and Vinnie Matarazzo, Aerosmith—whether sober, sloshed, asleep, whatever—still appealed to drunkards and "crazies," shady types prone to attend rock shows featuring "toxic" anything. Moreover, Aerosmith appealed to these people on purpose. "Crazies" make dedicated fans, and Aerosmith knew it.

So when a few nogoodniks assaulted the Matarazzos at Aerosmith's Madison Square Garden appearance, the couple sued. They didn't sue the offending fans, of course, but the band, venue, security provider, even Warner Bros. Records, who released Aerosmith's music. Perry, Tyler, and the whole crew—nestled comfortably behind the First Amendment—would likely have been exonerated. But the case was settled, bypassing annoyance, motions, depositions, etc. (they usually are), so we'll never know.

The point is nevertheless intriguing. Weren't the Matarazzos kind of right, after all?

On coke, Crue, and consciousness.
It surely can't be sheer coincidence that bands intending to rile their audiences end up doing just that. Trapt and Shinedown were pinpointed by one set of plaintiffs. Creed too. No coincidence; assholes in the audience, in some genres, are standard operating procedure.

At a Metallica concert in Ohio, an enthusiastic fan injured himself and others stage-diving onto unwilling patrons. Not just intoxicated, he recently drank "from a mysterious 'blue bottle' being passed around the crowd." Coked up and drunk while watching Motley Crue, another fan sued concert promoters for personal injuries after picking a fight with security personnel. (The first case settled, the second was laughed out of court.)

Other outlandish examples abound. Most of the time, they're equally unsurprising.

That's because they're not just predictable, but natural. When listening to music—particularly loud, thumping music—human minds pump natural opiates, our own internal "mysterious blue bottles." Activity in our amygdalas and frontal lobes intensify emotional responses and impulsivity. We've known this effect for millennia. Throughout history drum-heavy accompaniment was instrumental (pun intended) in waging war, used both as preparatory stimulants before raids and as chemical excitants during combat. Human reaction to music is ingrained, it's evolutionary. And it can be easily and intentionally manipulated.

To Robert Hooke, the momentarily-maniacal Danish king proved it. Today, we have an advantage: more than 300 years additional experience. By now, audience members, like coked-out Crue fans and Aerosmith's "Crazies," respond exactly as everyone expects, as science predicts, and—perhaps most importantly—as artists intend. Because visceral mass behavior testifies to the power of shared musical experiences, it is desirable to performers. Calmness means failure.

Knowing this, "tough guy" hardcore bands put "breakdowns" in every song and actively coax nonmoving crowds. So couldn't they be liable when someone inevitably gets hurt?

Like Stravinsky, shouldn't they be prepared, perhaps?

Jefferson Sodship.
Unpreparedness may or may not imply negligence, depending on circumstances and exceptions. Intentional acts of third parties, for example (like assaults and crimes), are often held "unforeseeable," giving no rise to affirmative duties or liability. So goes the classic rule, concert promoters and musical artists shouldn't be liable to audience members like you for meatheads in circle pits (or Stravinsky haters lobbing chairs).

They might, however, be legally required to anticipate commonly-occurring behaviors. One lower Michigan court, thinking along these lines, held concert promoters liable for inadequately anticipating audience melees that broke out during shows, noting that outdoor concerts featuring bands like Danzig, Ramones, Suicidal Tendencies, and Metallica, commonly devolved into large-scale "sod throwing" soirees.

The state's highest court, however, disagreed; injured attendees were owed nothing. There was no duty to anticipate crowd misbehavior, even if expected with near certainty. (There were duties to respond appropriately, of course, which the promoters met.)

Across the lake in Illinois, courts might rule differently. One single incident of "crowd surfing" at Stone Temple Pilots' 1994 concert (combined with the band's pro-moshing stance) constituted sufficient warning for promoters, giving rise to an affirmative preventative duty at subsequent gigs. The same held true for fireworks in Jefferson Starship's audience; knowledge of previous incidents required promoters to adopt preemptive measures.

Thus, courts go either way. They agree that fans act in predictable, even if idiotic, ways. But they don't agree whether artists and venues need to be ready for it when they do.

The same old song and dance.
Stravinksy and Limp Bizkit said they never saw it coming. So must audience members hoping to trade injury for income. The circumstances present a conundrum.

Allowing venues and artists to feign ignorance (like sod-field proprietors and metal bands ignoring the past) gives assholes and crazies free reign without anybody, really, being made to pay. But validating disingenuous fans' unbelievable lawsuits (like "blue bottle" drinkers' personal injury claims) lends credence to opportunists, which is undesirable. No one—neither Stone Temple Pilots' and Aerosmith's fans nor Parisian promoters and Madison Square Garden—can honestly expect anyone to believe they didn't see it coming. We all saw it coming.

And we've seen it coming for hundreds (if not thousands) of years.

Thus, whether judges hold promoters and musicians accountable for being "unprepared for the explosion" when fans act in ridiculous (yet predictable) riotous ways, boils down, essentially, to one central inquiry: Whose interests do they want to promote, opportunists or assholes?

It seems either is a loss.

So when "tri-tones," disharmony, and pounding, driving rhythms overcome the musical masses, when mayhem erupts around you, and you're given the chance to grab a chair and participate, stand aside, or walk away, ask yourself whether you want to join the fun (be an asshole) or hope to get hurt and sue (be an opportunist). One brings pleasure, the other, potentially, profit.

Different courts say different things. Settlements are never guaranteed.

You might as well just play it safe.

Do both.


Re-Compress ...
NOTES AND SOURCES ( click to reveal )
Riot on the Parisian Strip.
Robert Hooke and the King of Denmark were found in STUART ISACOFF, TEMPERAMENT: HOW MUSIC BECAME A BATTLEGROUND FOR THE GREAT MINDS OF WESTERN CIVILIZATION 190 (2003), as was the quote about "our own contemporary music."

The "tri-tone" discussion can be found in many different sources, but here is taken from DANIEL J. LEVITIN, THIS IS YOUR BRAIN ON MUSIC: THE SCIENCE OF A HUMAN OBSESSION 14 (2008).

For a discussion of the riotous Parisian debuts, see ALEX ROSS, THE REST IS NOISE: LISTENING TO THE TWENTIETH CENTURY 82 (2008). Apparently, this type of thing happened once or twice per year. Anecdotes about Stravinsky's response to the "Rite of Spring" riots were taken from HAROLD C. SHONBERG, THE LIVES OF THE GREAT COMPOSERS 480 (1997), where Stravinsky was quoted as follows, regarding the riot during the debut of "Rite of Spring": "The reactions of the musicians who came to the orchestra rehearsals were without intimation of it, and the stage spectacle did not appear likely to precipitate a riot."

Dude looks like a "crazy."
The history of Aerosmith's comeback is well-documented. Among my favorite sources is an interview with Steven Tyler and Joe Perry in the THE DECLINE OF WESTERN CIVILIZATION PART II: THE METAL YEARS (1988), filmed during their comeback in the late 1980s.

The Matarazzo's lawsuit was discussed in Matarazzo v. Aerosmith Productions, Inc., 1989 WL 140322 (S.D.N.Y.1898). After briefly providing the facts and limited procedural background, the opinion addressed whether attorneys fees should be granted to Warner Bros. Records, after settling with the plaintiffs on the condition they could still pursue sanctions. The court denied the request, saying the Matarazzo's lawsuit was not so frivolous as to warrant sanctions. In support, the opinion cited cases involving "incitement" speech in the media, such as McCollum v. CBS, 249 Cal.Rptr. 187 (Cal. Ct. App. 1988), in which the family of a young man sued Ozzy Osbourne, alleging the lyrics to his song "Suicide Solution" caused the young man's suicide.

On coke, Crue, and consciousness.
The Trapt/Shinedown lawsuit is Hambly v. Splitting Kings 2 LLC, 2009 WL 1317501 (Wash. App. Div. 2009) (spelling both bands' names incorrectly as Trapped and Shine Down). Plaintiffs were assaulted and injured by an attendee with a tendency for mosh pit violence, of which the show's proprietors were aware. (The bands themselves were not sued.) The Washington court held that no authority existed for finding the venue liable for the tortious/criminal acts of third parties, even though they may have been, admittedly, foreseeable.

Harlow v. Cee-It-Live, LLC, 2005 WL 407853 (Conn. Super. Ct. 2005) is the Creed case briefly mentioned above. This case is fascinating, and could have been in the main text. The court denied Creed's motion for summary judgment on an injured fan's negligence claims. Plaintiff argued Creed and other defendants "knew or should have known based on the genre" that the audience would act like jerks. The court found for Plaintiff, but on slightly different grounds: "genuine issues of material fact exist regarding whether the Creed defendants permitted to persist the dangerous activities of moshing, crowd surfing and stage diving, thereby creating an unreasonable risk of injury to patrons." This holding focused more on Defendants' response (as in the Mighigan cases discussed below) than anticipation (as in the Illinois cases below).

The "blue bottle" lawsuit is Adams v. Metallica, Inc., 143 Ohio App.3d 482 (Ohio Ct. App. 2001). The facts of the case are briefly summarized, and the remainder of the opinion deals with procedural issues, such as whether to seal discovery documents and whether to allow for party intervention. A later case mentions the settlement, but discusses it minimally (Adams ex rel. Adams v. Sand Creek, Inc., 860 N.E.2d 898 (Ind. Ct. App. 2007)), focusing instead on disputes between Plaintiff's original lawyers and designated local counsel, arising from the former underpaying the latter.

The coked-out Crue fan's lawsuit was White v. SMI of Pattison Ave., 1998 WL 633697 (E.D. Pa. 1998).

The evolutionary history of music and the brain can be found in LEVITAN, THIS IS YOUR BRAIN ON MUSIC; the parts about the amygdala, etc., were taken from 175 and 189. Other recent works discussing the psychological and evolutionary role of music include OLIVER SACKS, MUSICOPHILIA: TALES OF MUSIC AND THE BRAIN (2007); JOHN POWELL, HOW MUSIC WORKS: THE SCIENCE AND PSYCHOLOGY OF BEAUTIFUL SOUNDS, FROM BEETHOVEN TO THE BEATLES AND BEYOND (2010); and PHILLIP BALL, THE MUSIC INSTINCT: HOW MUSIC WORKS AND WHY WE CAN'T DO WITHOUT IT (2010). For an interesting discussion of the amygdala, and how it literally pits knee-jerk, emotive reactions against rational responses inside your brain, see STEVEN JOHNSON, MIND WIDE OPEN: YOUR BRAIN AND THE NEUROSCIENCE OF EVERYDAY LIFE 64-66 (2004).

Accounts of drum accompaniment in war come from a rather lengthy discussion in DANIEL J. LEVITIN, THE WORLD IN SIX SONGS: HOW THE MUSICAL BRAIN CREATED HUMAN NATURE 41-51 (2008).

Jefferson Sodship.
Regarding negligence liability and third party's intentional actions, Harlow, 2005 WL 407853, summed the rule succinctly: " a defendant's liability for negligence shifts entirely to the superseding conduct of a third person". Hambly, 2009 WL 1317501, agreed: "As a general rule, a person has no legal duty to protect another from the criminal acts of third parties."

The lower Michian court's decision was MacDonald v. PKT, Inc., 593 N.W.2d 176 (Ct. App. Mich. 1999), which was reversed in MacDonald v. PKT, Inc., 628 N.W.2d 33 (Mich. 2001). The latter opinion consolidated two differently-decided Michigan cases, the lower McDonald decision and Lowry v. Cellar Door Productions of Michigan, Inc., 1999 WL 33441303 (Mich. 2001). The technical legal issue was whether, under a negligence theory of liability, promoters owed a duty to patrons to anticipate and specifically prepare for the criminal or tortious acts of third parties (e.g., hire extra security to prevent sod-throwing by the audience). In the supreme court's decision, the court held they did not: "[T]he duty to respond is limited to reasonably expediting the involvement of the police, and . . . there is no duty to otherwise anticipate the criminal acts of third parties. . . . [M]erchants are not required to provide security personnel or otherwise resort to self-help in order to deter or quell such occurrences." McDonald, 628 N.W.2d at 44. See also Harlow, 2005 WL 407853, discussed in the notes Coke, Crue, and consciousness, above.

The Stone Temple Pilots concert was discussed in Thomas v. State of Illinois, 55 Ill.Ct.Cl. 337 (Ill. Ct. Cl. 2003). Its holding starkly contrasts McDonald above, saying "the law impose[s] a duty . . . to warn and protect the [audience members] from the danger of body surfing, which . . . was an activity that was both reasonably forseeable and in fact actually anticipated at this rock concert due to the reputation of the star act, the Stone Temple Pilots." However, since the phenomenon was new-ish and Plaintiff hadn't dealt with it "hands-on" before, the court said Plaintiff reasonably failed to anticipate proper response in this instance. Fireworks in Jefferson Starship's audience were the subject of Martens v. The Board of Trustees of Southern Illinois University, 35 Ill. Ct. Cl. 80 (Ill. Ct. Cl.1981). In the context of landowners' duties, the court said at such concerts "trouble was always to be anticipated because of the nature and size of the crowd," and thus "knowledge of the danger" gives rise to a "duty to anticipate it." See also Hambly, 2009 WL 1317501, discussed in the notes Coke, Crue, and consciousness, above, where Creed themselves were sued.