| "When a corporation denies or misappropriates credit to the creators of
entertainment products, and then compounds their errors by engaging in deceptive and
misleading business practices to consumers, judges and juries will rightly hold that
offender accountable," said Thomas A. White, the Beverly Hills-based record industry
trial consultant who testified as expert witness for ONAM. The 2.5-year legal battle
culminated in a six-day jury trial in late September in Portland, resulting in the jury
awarding Doucet roughly one million dollars in reputational damages and
royalties owed. The case comes at a time when the industry is mainly focused on digital
rights issues, begging the question "Do we even understand our basic copyright laws
and the importance of artist credits?"
One of ONAM and Doucet’s trial lawyers, Los Angeles-based Entertainment Attorney, Douglas L. Johnson, explains, "this case highlighted
the importance of artists receiving proper copyright credit on
the finished product that is submitted for sale to consumers. Copyright credit is
invaluable to artists; their entire livelihood in the industry is based on it. Artists
need the credits for marketing purposes and future business deals. Proper copyright credit
allows consumers to become familiar with the artist and the type of music they produce. In
turn, consumers that enjoy an artist’s music will recognize them in the future and buy
more of their music. Proper credit also gives the artist credibility and clout for future licensing deals. In this case, Allegro took the copyright credits
for themselves, so as to deprive the artist, producer, and the label (ONAM) of their right
to build up their reputations and receive further licensing deals for their music. We
argued to the jury that Allegro took the copyright credits on the CDs because they knew it
would add to the value of its business. The jury clearly understood the value of the
copyright credits that Allegro took for themselves, and, hopefully, Allegro will never
wrongfully take credit again."
The ONAM victory illustrated two points: 1) that our jurors and judges are
highly-capable of interpreting and understanding complex intellectual property
rights, even when distributors do not, and, 2) artists with willpower, a strong
case, and industry/legal support can take on errant multi-million dollar companies and
win.
Testimonials in the case exhibited some of the finer points of copyright law to jurors.
For instance, John Polito, witness for ONAM and owner of Audio Mechanics (Burbank, CA),
testifying on the destructiveness of unauthorized derivative
works, said when you delete the beginning of a song "it is like
cutting off the nose of the Mona Lisa."
Interestingly, Doucet, a New Age recording artist, is somewhat of an unlikely hero who
never wanted to go to court. "I contacted Allegro to discuss the issue, and followed
up later with a letter to the manufacturing company to reclaim
my masters. After doing so, Allegro sued me rather than trying to work it
out between us," she explained during an interview in her Hollywood Hills studio.
"I had no choice but to countersue."
According to Doucet, it was 1999 when she first realized that the "Sounds of
Nature" and "Tranquility" series recordings (co-produced and
created with binaural sound engineer Chuck Plaisance) -- which she had formerly licensed
to Allegro Corporation in 1997 and 1998 as part of a non-exclusive licensing agreement --
were being retitled, altered, and mis-credited.
Her research revealed dozens of such titles in the marketplace, selling millions of
units. Allegro had re-released and repackaged numerous albums under different titles on
different "record labels" and under different copyright notices without any
authorization from ONAM or Doucet. Doucet also found that they took ownership in masters
and credits, then sold the original titles -- as well as the retitled versions -- in the
same retail outlets (Tower, Borders, Barnes & Noble, Best Buy, Wal Mart and Ross)
without any reference on the packaging to the original
releases. After reviewing copyright law and consulting legal counsel, it
became clear to Doucet that Allegro was breaking the law and avoiding valuable royalty
payments. Beyond that, the resulting product was sub-standard, thus damaging to the
overall Nature Sounds & Music niche itself.
Ultimately, Doucet hired the entertainment law firm Johnson & Rishwain
to represent her in what became a David and Goliath-type suit. Allegro lost their original
claims against ONAM; it was decided by the Federal Court
in summary judgment that they had breached the contract not giving customary copyright
credit and by re-titling the original masters. However, Allegro denied any damages to
Doucet, thereby forcing a long road toward a jury trial to establish damages and awards.
Such extended legal battles can be devastating to indie artists; Doucet & Plaisance
logged thousands of hours documenting the infringements and breaches of the contract to
present in the recent jury trial resulting in time away from composing new music and
managing her consulting and online business, www.newagemusic.com.
"I am relieved it is over, it was a nightmare," says Doucet. "This
battle disrupted my life for the past 4 years. Even though it was a very challenging
experience for me, I hope it ultimately is a win for all
artists whose copyrights have been disregarded or tampered with and who
have suffered reputational damages. I sympathize with artists who have had to fight
against large corporations, which I believe use extended litigation as a strategic tool to
silence artists and drive small companies out of business."
Doucet adds, "I'm heartened to have had the support of those in our industry who
value intellectual property, ethics and integrity; my legal team and witnesses went above
and beyond their professional obligations in their efforts to bring justice in this case.
I am grateful to my attorneys Neville Johnson, Brian
Rishwain, Douglas Johnson and Mike Cohen; the
expert witnesses Thomas White (reputational damages) and Wayne Coleman (royalty
accounting); and witnesses Chuck Plaisance (co-producer, composer, 3-D Sound engineer),
John Polito (Audio Mechanics), and Guido Scippione (ex-employee of Allegro)."
"It took me over 10 years to create
the nature sound library and I am relieved to have it out of the clutches of Joe and Vince
Micallef (Allegro Corporation)" comments Plaisance. "I hope this victory changes
the way Corporations treat the creators of intellectual property, because without them
there is nothing to market."
The jury trial was held in Federal Court in Portland, Oregon. The suit is
publicly-recorded as "Allegro vs. Only New Age Music, Inc." Doucet’s trial
lawyers were Neville Johnson and Douglas Johnson from the law firm Johnson
& Rishwain as well as Mike Cohen from the Portland law firm Schwabe,
Williamson & Wyatt. Legal counsel at trial for Allegro Corporation was Jerry Margolis
and Mathew Kanny of Manett, Phelps & Philips, and Bill Stockton of Brisbee and
Stockton LLC.
Beth Ann Lerch is a writer and president of The B Company: Music Solutions that
Generate Buzz, in Los Angeles, CA. |