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Old 05-28-2009, 04:22 PM
Paul Quin Paul Quin is offline
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Join Date: Jul 2005
Location: Tampa, Florida
Posts: 553
Default Re: Lib DeVitto Sues Billy Joel.

Originally Posted by Pat Petrillo View Post
I think this opens up a great discussion in regards to contractual agreements, "hired hand" drummer, or "band member", royalty agreements, etc.

Although we do not really know the agreement they shared re: songwriting/publishing on various songs, if it's not written down, it's not valid. Perhaps he was promised points on various songs.

I think that drummers need to account for what they bring to a song re: groove, "direction", feel, etc. Is the groove or drum part to a song as important as a melody and lyric? In todays pop market, I think it's 50/50.

In general, if you are being paid to do a session, you are being paid to create a part for a song, much like a guitar player doing a part or solo. If the artist already has a groove and direction they want you to play, that's one thing. If they say "what do you think the groove/feel/direction should be on this song?", then you are being asked to contribute to the writing of that song, in my opinion, and a "point" or royalty of that song should be negotiated. If the artist starts the song as a shuffle, and you change it to an up tempo funk groove, and they like it, and it's a hit, then you've created a very important part of what makes that song work.

I will be following this closely, as I think we all should, as it may open up new avenues for us "behind the scenes" musicians!

Thanks Pat!!! This thread raises some really good points and some that are a little confused. Some of the issues raised are near and dear to the heart of many in the business and some are starting to be addressed right now! At the risk of writing a short novel I would like to try to clarify some points and address some others.

First you have to recognize that the real money in this business is in songwriting and in songwriting royalties. The payment of such royalties is tied to what under current law you can copyright. Copyright is reserved for only the lyrics and melody and, therefore, except under very rare circumstances does not include the contribution of the drummer. In some cases, drummers or sidemen have litigated this issue and tried to argue that their part is integral to the song and contributes to the overall work in such a manner as to warrant a royalty payment. Most of these claims have been unsuccessful.

In regard to Liberty's claim we don't yet know enough concerning the evidence of agreements between Liberty and Billy Joel to really address the merits of his claim. As someone who deals with similar issues, however, we all should applaud him for taking a stand and maybe this will help bring the issue to the fore. In regard to the post which mentioned Liberty has a wrongful termination suit, i very much doubt it. Most states in the US (and I don't know which state's law would apply to Liberty's claim) are "employment at will" states: this means that any employee can be fired for a good reason, a bad reason or no reason at all (unless that reason violates public policy - eg. you can't be fired because you are African-American). Furthermore, it is unlikely that Liberty was ever an "employee" and was more likely an independent contractor and Billy Joel is free to contract or not contract with whomever he wants.

The traditional way around the lack of a royalty payment to the sideman/woman is to agree with the songwriter that the part you wrote is worthy of a writing credit for the song as a whole. This will provide you with a piece of the pie but, make sure that this Agreement is written down!! In many cases, however, this is simply impossible to do as the songwriter has no desire to relinquish his or her rights or any part of them and currently their is no legal basis to make such a claim in the courts. Unfortunately, a drummer who insists on such an arrangement may find themselves being replaced. Prior posts which mention U2 and the Police are good examples of the differing approach to this issue. U2 share all royalties while the Police did not! In the case of a session player - who, remember, is often retained because of their ability to play quickly and accurately - they are simply paid a flat fee which may be scale or, depending on the fame and or notoriety of the player, may be higher (or for the non-union guys out there, may be lower). This system, most often, also applies to the big name guys and even though they may have a signature part still only earn a work-for-hire fee and take no part of the royalties. Gadd, for example, received no songwriting credit for Aja or for 50 ways, whereas many of us on this site would argue that he would have a good claim to do so.

In the band context, some bands have been very creative in addressing this issue. In the case of Chicago, an agreement was reached among the band members that a percentage of all songwriting royalties would be put into trust and split among the non -songwriting members of the band who played on that tune. This provides residual payment to those musicians who are no longer with the band and often amounts to a higher royalty payment than is paid for simple sales. This approach is also less onerous for the "songwriter" as he or she still reatins a higher percentage than if the credit was simply shared.

Perhaps the most unfair issue, especially for drummers, relates to the use of sampling. Often it is the distinctive drum part to a song which is sampled and used on a newly released record. There is, of course, a royalty payment made for use of the sample but it goes to the songwriter who owns the copyright. This is the case even if the sample is ONLY the drum part and the melody and lyrics of the song are never included in the new version. There is an Ashford and Simpson song which has a drum intro played by Jonathan Moffett. This intro has been sampled more than 500 times and Jonathan has never received any money for it above what he was paid for the session. The part was written by him and, arguably, it made the song. The part is certainly distinctive enough to recognize the song just from the drum intro. Under current copyright law, he has no claim. It is this particular unfairness which we are trying to address and which has many, many of the top players out there recognizing this fundamental unfairness.

Having congress change the copyright law to address unfairness to drummers is unlikely to obtain very much priority among our representatives. This has led to many discussions and attempts to resolve this issue in other ways. One potential solution is an agreement to be executed by the artist and the sideman/woman which concerns sampling of their individual parts and a share of the royalty payments for the same. This is extremely complicated and fraught with problems associated with policing the source of the royalty payment. Another solution is to use the musicians' union but in some states (such as Florida) there can be no closed shop and so the union has more limited power. We will, however, keep working on behalf of musicians and drummers to make sure that the system becomes more fair.

In the meantime I would suggest listening to Pat. All agreements should be in writing and nothing should be done in the absence of an agreement (and that includes agreements between band members); never sign anything except an autograph without having a lawyer look at it first and never sign an autograph at the bottom right hand side of a blank 8 x11 piece of paper!

I have already written about 10x the information that most will read. Hopefully, however, you can tell that this is an issue which is dear to my heart. I am interested to hear your thoughts.

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