Legal
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This is The Legal Beat, a weekly newsletter about music law from Billboard Pro, offering you a one-stop cheat sheet of big new cases, important rulings and all the fun stuff in between.
This week: Mötley Crüe faces a lawsuit claiming the band unceremoniously terminated its longtime guitarist; Kanye West’s Donda Academy is hit with a wrongful termination suit packed with bizarre details; Aerosmith’s Steven Tyler responds to a sexual abuse case; and much more.
THE BIG STORY: Mötley Crüe Heads To Court
A private feud between longtime members of the legendary rock band Mötley Crüe has burst into public view.
Crüe co-founder Mick Mars filed a lawsuit last week demanding access to the band’s books — and thus also disclosing for the first time that he and his former bandmates have been locked in private arbitration proceedings for months over the legal mechanics of his exit from the band.
According to Mars, his former “brothers” tossed him to the curb after he said he could no longer tour due to a “tragic” disability called ankylosing spondylitis. The rest of Crüe, on the other hand, says they offered Mars “generous compensation” as a courtesy, but that he instead chose to file an “ugly public lawsuit.”
The case is technically about dry issues like LLC operating agreements. Mars says the band did not have cause to terminate his 25% stake in Crüe’s corporate entities; the band says they all signed an agreement in 2008 that clearly states they owe Mars nothing after he resigned. But each side has also already made much splashier allegations, too.
In his complaint, Mars claimed that Crüe bassist Nikki Sixx “did not play a single note” during a recent tour, and instead essentially mimed along to recorded tracks. In response, the band released sworn statements from touring staffers claiming that it was Mars who had needed backing tracks during concerts: “There were times when he played a completely different song than the rest of the band. This happened at almost every show.”
For a full breakdown of the case against Crüe — including access to the actual complaint Mars filed against the band — go read the entire story here.
Other top stories…
TROUBLE AT SCHOOL – Two former teachers at Kanye West’s Donda Academy filed a lawsuit against the embattled star, alleging wrongful termination, discrimination and unpaid wages. The allegations included bizarre details about West’s controversial school, including that students were fed only sushi and that classes were restricted to the ground floor because West is afraid of stairs.
ROCHESTER CONCERT TRAGEDY – Ronisha Huston, an alleged victim of last month’s deadly stampede at a GloRilla concert in western New York, filed notice that she was formally preparing to sue over the incident. Saying she had suffered emotional distress, Huston’s lawyers need “pre-action discovery” to obtain video footage, emergency plans and other key information from the concert venue.
STEVEN TYLER DENIES ABUSE CLAIMS – The Aerosmith singer denied allegations that he sexually assaulted a woman named Julia Holcomb when she was a minor in the 1970s. The filing raised eyebrows because Tyler’s lawyers argued, among many possible defenses, that Holcomb had possibly consented to his conduct, or that he was immunized from her claims since he had been granted legal custody over her.
TRADEMARK ON A MANTRA? Insomniac Events, a major promoter of dance music events, made waves this week when fans noticed that it had recently filed an application to secure a federal trademark registration on the term “PLUR” — an acronym (peace, love, unity, respect) that has been heavily used in the dance scene since the early ‘90s.
LOVERS & FRIENDS LAWSUIT – Live Nation was hit with a lawsuit over injuries at last year’s Lovers & Friends festival during a stampede triggered by false reports of gunfire. The three fans who filed the case say the concert giant “failed to take basic, reasonable steps” to protect them from such an incident: “Plaintiffs screamed for emergency medical care for their injuries, but none came.”
PANDORA CLAIMS TOSSED – For a second and final time, a California federal judge rejected Pandora’s allegations that comedians have been illegally conspiring to extract unfair prices from the digital streaming service. Those accusations came as counterclaims after the comics sued Pandora, demanding to be paid the spoken-word equivalent of publishing royalties for their underlying jokes.
POP SMOKE KILLER SENTENCED – One of four men charged in the killing of rapper Pop Smoke during a robbery at a Hollywood Hills mansion pleaded guilty to voluntary manslaughter. The man, whose name has not been released because he was a minor when the killing occurred in early 2020, was sentenced to four years and two months in a juvenile facility.
Live Nation is facing a lawsuit from three people who say they were injured at last year’s Lovers & Friends Music Festival in Las Vegas, during a stampede triggered by false reports of gunfire.
In a complaint filed last week in Los Angeles, plaintiffs Carla Thomas, James Thomas and Aaliyah Aguilar claimed that Live Nation had “failed to take basic, reasonable steps” to protect them from such an incident.
“Plaintiffs screamed for help from the event organizers and security, but none came,” lawyers for the trio wrote. “Plaintiffs screamed for emergency medical care for their injuries, but none came.”
The two-day Lovers & Friends festival, held over a weekend last May, featured several R&B and rap artists, including Usher, Ludacris and Ne-Yo. But performances were briefly halted that Saturday when a large group of panicked attendees fled the venue over rumors of gun shots. Police later said that there was no evidence that a shooting took place.
Stampedes amid false reports of gunfire have cropped up several times in recent years. Fans suffered injuries during gunfire panics at a Future concert in Brooklyn in 2017, at Lil Wayne and Cardi B concerts in 2018, and at the 2019 Rolling Loud festival in Miami. Just last month, three fans were killed during a stampede at a GloRilla concert in western New York reportedly sparked by fears of a shooter.
In their lawsuit, Thomas, Thomas and Aguilar claimed that the rush at Lovers & Friends was triggered by a “loud noise,” causing a “sea of people” to surge toward them. They said they were “pushed, smashed, dragged, kicked, stepped on, trampled and crushed to the ground” during the incident, causing them “serious injuries” and emotional distress.
And their lawyers say that Live Nation is to blame – specifically, that the company was negligent in how it planned and operated the festival.
“Defendants failed to employ adequate, properly trained, monitored, and supervised reasonable security, safety and medical provision measures,” they wrote. “Defendants failed to provide a safe venue, one that provided adequate signs and warnings that would have guided the crowd into a particular emergency exit route in the event of an alarm or emergency.”
Such lawsuits are common after incidents in which fans are injured at concerts, but they’re not easy to win. Lawyers for the accusers will need to show that the incident was something Live Nation could have seen coming, and that it failed to take specific steps that would have prevented the injuries suffered by their clients.
A rep for Live Nation did not immediately return a request for comment on Tuesday.
One of four men charged in the killing of rapper Pop Smoke during a robbery at a Hollywood Hills mansion pleaded guilty Thursday (April 6) to voluntary manslaughter.
The 20-year-old man, who was 17 when the killing occurred, also pleaded guilty in Inglewood juvenile court to home invasion robbery. He was sentenced to four years and two months in a juvenile facility.
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The judge has barred the public use of his name because he was a minor at the time of the shooting.
The 20-year-old New York rapper, whose legal name is Bashar Barakah Jackson, was killed on Feb. 19, 2020, at a rented home where he was staying while on a four-day trip to Los Angeles. A 911 call from a friend of someone in the house reported armed intruders inside the home, police said.
The robbers knew the address because a day earlier, Jackson had posted a photograph on social media of a gift bag he had received and the address was on a label, authorities said.
Jackson was in the shower when masked robbers confronted him. During a struggle, one attacker, who was 15, pistol-whipped the rapper and shot him three times in the back, according to court testimony cited by the Los Angeles Times.
The attackers stole Jackson’s diamond-studded Rolex watch and sold it for $2,000, a detective testified.
The teenager, whose name also is being withheld, was charged in the case along with Corey Walker, who was 19 at the time, and Keandre Rodgers, who was then 18. They are accused of murder during the commission of a robbery and burglary.
Pop Smoke arrived on the rap scene in 2018 and broke out with “Welcome to the Party” a gangsta anthem with boasts about shootings, killings and drugs that became a huge sensation, and prompted Nicki Minaj to drop a verse on a remix.
He had several other hits, including the album “Shoot for the Stars Aim for the Moon,” which was released posthumously.
Mötley Crüe co-founder Mick Mars is suing his former bandmates, demanding access to the band’s books after he says he was unceremoniously terminated when he disclosed a chronic illness.
In a petition filed Thursday in Los Angeles court, attorneys for Mars say he’s a 25% shareholder in the Crüe’s corporate entities, but that the band tried to cut him out entirely after he said he could no longer tour due to an arthritic condition called ankylosing spondylitis.
“How did Mars’s brothers of 41 years respond to Mars’s tragic announcement?” his lawyers wrote. “They [held] an emergency shareholders’ meeting for the band’s main corporate entity in order to throw Mars out of the band, to fire him as a director of the corporation, to fire him as an officer of the corporation, and to take away his shares of the corporation.”
Mars stepped away as a touring member of Crüe last year, but his lawyers say he clearly still wanted to record with the band and play residencies — and that he certainly wasn’t handing away his lucrative shares in the band’s corporate entities.
But in Thursday’s petition, Mars’ attorneys say that the group moved to fire him under a clause in the band’s operating agreement that allows for removal of a member for “legal cause.” Mars cited an alleged email in which the band’s attorney said Mars was no longer able “to perform as a full-fledged band member,” claiming he had repeatedly made mistakes on stage.
Rather than the 25 percent he’s allegedly owed, Mars says Crüe co-founder Nikki Sixx and the rest of the band offered him just 5 percent to walk away – and said they were only doing so “as a courtesy.”
“Sixx made it clear to Mars that he believed that the offer was a generous one, and that Mars, after 41 consecutive years with the band, did not deserve anything going forward,” lawyers for Mars wrote in Thursday’s filing. “Sixx further ‘gaslighted’ Mars by severely criticizing his performances on the U.S. tour, and exclaimed that there is no way that the band could tour with Mars anymore.”
After he pushed back on the moves to remove him, attorneys for Mars say the band stopped responding and instead filed an arbitration case against him in February — “essentially suing him” to prove that they had the right to kick him out of the band.
“They clearly commenced an arbitration, rather than a public lawsuit, so that the public would not be aware of the deplorable manner in which they treated their ‘brother’ of 41 years,” lawyers for Mars wrote in the petition.
In technical terms, Wednesday’s filing was a petition asking a judge to rule that Mars can access the band’s financial records, operating agreements and other key information amid the dispute. While it included many details about his firing and his disability, Mars is not directly suing the band over his termination.
A rep for Mötley Crüe did not return a request for comment.
Aerosmith singer Steven Tyler is denying allegations that he sexually assaulted a minor in the 1970s.
In his first response to the lawsuit, attorneys for Tyler denied all of the accusations from Julia Holcomb, who sued in December over allegations that she was the person referenced in the singer’s memoir as almost his “teen bride.”
The response, a filing called an “answer” that is the standard first step for a defendant in any lawsuit, listed a wide range of possible defenses Tyler might employ. They included that Holcomb had consented to Tyler’s alleged conduct, or that he was immunized from her claims since he had been granted legal custody over her.
Tyler’s new filing elicited a strongly-worded response from Holcomb’s lawyers, taking particular offense at the claims about consent and custody.
“Never have we encountered a legal defense as obnoxious and potentially dangerous as the one that Tyler and his lawyers launched this week,” attorney Jeff Anderson wrote in a press release responding to the filing. “We hope Tyler’s mean-spirited gaslighting will backfire on him.”
A representative for Tyler did not return a request for comment on the new filing or on Anderson’s statement.
Holcomb’s allegations against Tyler are not new. She made similar accusations in a 2011 article published by the anti-abortion website LifesiteNews, and she made the same claims in 2020 during an appearance on Tucker Carlson’s show on Fox News.
But in December, she formalized those claims in a lawsuit filed in Los Angeles court, claiming Tyler used his “power as a well-known musician and rock star” in order to “gain access to, groom, manipulate, exploit” and sexually assault her for three years starting in 1973, when she was just 16 years old.
The lawsuit repeatedly cited Tyler’s own memoir (Does the Noise in My Head Bother You?), in which he explicitly referenced a relationship with an underage girl. “She was 16, she knew how to nasty, and there wasn’t a hair on it,” Tyler wrote in the book passage that’s quoted in the lawsuit. “I was so in love I almost took a teen bride.”
The lawsuit alleges that Tyler convinced Holcomb’s parents to grant him guardianship over her — an accusation that also came with quotes from his memoir: “I went and slept at her parents’ house for a couple of nights and her parents fell in love with me, signed paper over for me to have custody, so I wouldn’t get arrested if I took her out of state.”
In technical terms, Holcomb accused Tyler of sexual battery, sexual assault and intentional infliction of emotion distress. The case was filed just days before the expiration of California’s Child Victims Act, which temporarily suspended the statute of limitations for sexual abuse lawsuits to allow for such years-old claims.
Read Tyler’s entire legal answer here:
An alleged victim of last month’s deadly stampede at a GloRilla concert in western New York is formally preparing to sue over the incident, saying she suffered emotional distress and needs access to video footage, emergency plans, and other key information.
In a court filing Tuesday, attorneys for Ronisha Huston said she was the sister of Rhondesia Belton, one of three people who died in the March 5 incident at Rochester’s Main Street Armory, which police believe may have been triggered by unfounded fears of gunfire.
“Petitioner Ronisha Huston and her now deceased sister, Rhondesia Belton, got caught up in the crowd surge,” her lawyers wrote. “Huston witnessed her sister getting crushed in the stampede.”
Tuesday’s court filing came in the form of a “petition for pre-action discovery” – a maneuver under New York state law that allows a potential plaintiff to seek a court order to obtain key information that might be important to the case. In it, Huston’s attorneys said they had been retained to “pursue claims for personal injuries and infliction of emotion[al] distress” and that she has a “meritorious” case.
The filing demanded that Main Street Armory hand over a wide range of potential information, including the security firms involved, video footage of the entire concert, fire exit and emergency plans, floor plans, regulatory permits, and “communications with private entities involved with the concert.”
The Main Street Armory did not return a request for comment on the filing. No other individuals or organizations involved in the show were named in the petition.
Last month’s deadly stampede came after GloRilla had concluded the concert. According to the city officials, people exiting the venue just after 11 p.m. began to surge dangerously after hearing what they believed to be gunshots; police have found no evidence of actual gunfire.
Belton, 33, and Brandy Miller, 35, died shortly after the incident; a third women, Aisha Stephens, 35, died a few days later. Several other people were injured in the stampede. The next day, GloRilla shared on social media that she was “devastated & heartbroken” over the incident: “My fans mean the world to me 😢praying for their families & for a speedy recovery of everyone affected.”
Investigations into the incident by local police and regulatory authorities are currently underway, and Rochester has effectively shuttered the Main Street Armory by refusing to renew the venue’s entertainment license.
If history is any guide, a case filed by Huston could be the first of several against the organizers of the GloRilla concert.
The deadly crowd surge incident during a Travis Scott concert at the Astroworld music festival in 2021 has spawned hundreds of such lawsuits, albeit over a tragedy that claimed far more victims. The lawsuits, which are still pending, claim the festival’s organizers (including Scott and Live Nation) were legally negligent in how they planned and operated the event.
Other lawsuits over the Rochester stampede already appear to be in the works. The family of Aisha Stephens, one of the women killed in the stampede, has hired well-known civil rights and wrongful death lawyer Benjamin Crump, who said last month that her death was “completely preventable” and vowed to “learn what happened and hold those responsible accountable.”
Beyond the references to “personal injuries” and emotional distress, it’s unclear exactly what legal claims Huston will eventually bring and against what defendants, or when a full lawsuit will be filed. Huston’s attorney, Richard A. Nicotra, did not immediately return a request for comment on Tuesday’s filing. A label representative for Glorilla, who was not named in the filing, did not return a request for comment.
This is The Legal Beat, a weekly newsletter about music law from Billboard Pro, offering you a one-stop cheat sheet of big new cases, important rulings and all the fun stuff in between.
This week: Billboard reveals its yearly list of the top lawyers in the music industry; experts weigh in on the recent copyright infringement lawsuit against the Rolling Stones; Tory Lanez asks for a new trial following his conviction for shooting Megan Thee Stallion; and much more.
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THE BIG STORY: The Lawyers Behind The Music Biz
Billboard revealed its yearly list of top attorneys in the music industry this week, breaking down not only the best dealmakers and litigators at the country’s elite law firms, but also the key players from in-house legal departments at record labels, streamers, concert promoters and more.
Among other things, we asked this year’s honorees to name the pressing concern facing the music business in 2023. One of the most common responses from the folks who get paid to worry about future legal problems? The rise of so-called generative artificial intelligence tools like the popular ChatGPT.
“Those of us representing human artists and songwriters will have to stay ahead of the curve to ensure our clients have the opportunity to evolve in tandem with technology,” said Farrah A. Usmani, an attorney at the firm Nixon Peabody.
To read this year’s full list of Top Music Lawyers – featuring dozens of names with short blurbs on why they matter in 2023’s music industry – go read the entire thing here.
Other top stories…
NO SATISFACTION LIKELY FOR STONES ACCUSER – I took a deep dive last week into the recent copyright lawsuit claiming that the Rolling Stones copied their 2020 song “Living In A Ghost Town” from two little-known tracks, chatting with musicologists and litigators to understand the allegations and whether they’re likely to succeed. Go read what they said here.
MORE ROLLING STONES LITIGATION – In unrelated news, a new trademark lawsuit was filed that centers on the famed “tongue and lips” logo used by the Stones since 1971. The case was filed by a clothing chain that says it was threatened by a UMG-owned merch company with “unfounded” infringement litigation after it featured a similar design on t-shirts. (The band itself is not involved in the litigation and is not accused of any wrongdoing.)
TORY LANEZ DEMANDS NEW TRIAL – Attorneys for the rapper asked a Los Angeles judge for a new trial after he was convicted in December in the 2020 shooting of Megan Thee Stallion, calling the guilty verdict a “miscarriage of justice.” Such requests are standard procedure for someone who has lost at trial, but they are very rarely granted.
NICK CARTER COUNTERSUIT MOVES AHEAD – A Las Vegas judge refused to dismiss a countersuit filed by Backstreet Boys member Nick Carter against Shannon “Shay” Ruth, a woman who has accused him of rape. Ruth claimed that Carter’s defamation case was a so-called SLAPP suit that aimed only to “harass and intimidate” her, but Judge Nancy Alff was not convinced.
COACHELLA SETTLES ‘COACHILLIN’ LAWSUIT – The organizers of the annual festival agreed to drop a trademark lawsuit against Coachillin Business Park, a development site located just a few miles to the north of the grounds. Under the terms of the settlement, Coachillin said it would “cease any and all use” of the name going forward.
Coachella has agreed to drop its trademark lawsuit against a nearby California business park that called itself “Coachillin,” after the group said it would “cease any and all use” of the name.
The festival’s organizers (owned by AEG and its subsidiary Goldenvoice) filed the case in October against Coachillin Business Park, a planned development site located just a few miles north of the Empire Polo Club. They claimed the project was trying to free-ride on the famous name of the nearby festival.
In settlement papers filed Friday, Coachillin agreed to drop all use of the name on the internet with 45 days, and to stop using it entirely within 90 days. That means not only the name of the overall site, but related names like a “Coachchill Inn” hotel.
Any monetary terms of the settlement were not disclosed in public filings. Neither side’s attorneys immediately returned requests for more information on the terms of the agreement.
The lawsuit was part of an aggressive recent campaign from Coachella to protect its name against would-be imitators. In 2021, the festival sued Live Nation for selling tickets to a nearby event called “Coachella Day One 22,” and last year it filed a similar trademark case against a West African company over an event called “Afrochella.” Then in February, Coachella sued the creator of “Moechella,” a Washington D.C.-based music event centered on go-go music.
On its website, Coachillin described itself as an “Industrial Cultivation & Ancillary Canna-Business Park,” a proposed 160-acre site aimed at businesses in the cannabis industry. In addition to cultivation spaces, the group said the site will also feature a hotel, an amphitheater and other amenities.
In its October lawsuit, Coachella said it had “no objection” with any of that – except for the name, which they say is commonly used on social media as slang term for spending time at the music festival.
“The public has come to associate the phrase ‘Coachillin’ to refer to the Coachella Festival and plaintiffs, not merely to refer to the Coachella Valley—and certainly not Coachillin Holdings or its Coachillin Business Park,” wrote attorneys for the festival. “Defendants must use a distinctive name that does not infringe or trade on the goodwill of plaintiffs’ reputation.”
Movie star Leonardo DiCaprio testified in federal court Monday morning (April 3) as part of a trial involving international money laundering, bribery and a prominent rap artist.
Prakazrel “Pras” Michel — a founding member of the iconic 1990s hip-hop group the Fugees — is accused of funneling money from a fugitive Malaysian financer through straw donors to Barack Obama’s 2012 re-election campaign. Five years later, prosecutors say he tried to squelch an investigation into that same financer under former President Donald Trump’s administration.
At the heart of the case is Low Taek Jho, usually known as Jho Low. He is accused of masterminding an international money laundering and bribery scheme that stole billions from the Malaysian state investment fund known as 1MDB.
DiCaprio’s connection with the case comes from his yearslong relationship with Low, who was one of the primary financers of the movie The Wolf of Wall Street. Low is currently a fugitive but has maintained his innocence.
According to the charges, Michel essentially became a conduit for Low’s pilfered millions and his attempts to influence the U.S. government. Prosecutors allege that from June to November 2012, Low directed more than $21.6 million to be moved from foreign entities to Michel’s accounts in order to funnel money into the 2012 presidential election. They say Michel then paid about 20 straw donors and conduits so they could make the donations in their names and conceal where the money actually came from, according to the indictment.
DiCaprio testified that he met and befriended Low at a birthday party in Las Vegas in 2010. “I understood him to be a huge businessman with many different connections in Abu Dhabi and Malaysia,” he said.
The 48-year-old Oscar winner answered questions on the witness stand calmly — occasionally deferring to a fuzzy memory on some details and dates. In addition to his relationship with Low, DiCaprio said he had known the defendant Michel since sometime in the 1990s when they met backstage after a Fugees concert.
Low was known for hosting lavish star-studded parties and group vacations on his private jet to events like the World Cup in Brazil. DiCaprio recounted one particular junket that involved flying to Australia to celebrate New Year’s Eve, then flying to Las Vegas to celebrate a second time in one day. Michel was present on some of these trips, DiCaprio said.
Low became a regular contributor to DiCaprio’s charitable foundation, and eventually Low floated the idea of providing the primary financing for The Wolf of Wall Street.
DiCaprio said he had Low’s funding and legitimacy carefully vetted before entering into a business relationship.
“I was given the green light by my team as well as my studio,” he said. “He was a legitimate business person wanting to invest in the movie.”
DiCaprio also recalled a “casual conversation” with Low in which Low told him he intended to make a large contribution to Obama’s re-election campaign.
“It was a significant sum — something to the tune of $20-30 million,” he testified. “I said, ‘Wow that’s a lot of money!’”
When the Rolling Stones released “Living In A Ghost Town” in 2020, a lot had changed in the eight years since the legendary rock band had last put out a new song. Streaming music had become dominant, the UK had exited the European Union and a global pandemic had taken grip.
It had also seemingly become more common for the creators of hit songs to face lawsuits. In the wake of a multimillion-dollar verdict in 2015 against Robin Thicke and Pharrell Williams over “Blurred Lines,” a slew of major stars had faced similar copyright infringement cases over some of their biggest hits – including Taylor Swift, Katy Perry, Ed Sheeran, The Weeknd, Justin Bieber and Dua Lipa.
So it should have perhaps come as no surprise to Mick Jagger and Keith Richards when, last month, they were hit with a lawsuit claiming they’d illegally borrowed key parts of “Ghost Town.” Sergio Garcia Fernandez, who performs under the name Angelslang, alleged that they had “misappropriated many of the recognizable and key protected elements” from his 2006 song “So Sorry,” as well as his 2007 tune “Seed of God.” (Read the full complaint here.)
But such lawsuits, while plentiful, often face long odds. In just the past month, similar song-theft cases against Donald Glover (over his Childish Gambino chart-topper “This Is America”) and Nickelback (over the band’s 2005 hit “Rock Star”) have both been dismissed at the earliest stage of litigation. In Glover’s case, a federal judge ruled last week that the lyrics of the two songs were “entirely different.” In Nickelback’s dispute, another federal judge ruled the week prior that the case at times “borders on the absurd.”
And, according to legal and music experts, the new lawsuit against the Stones likely faces a similar fate.
“Living in a Ghost Town,” a blues-rock tune with some reggae vibes, does sound similar to “So Sorry” and “Seed of God.” Fernandez claims that’s because the new song borrowed key features from his songs, including the “vocal melodies, the chord progressions, the drum beat patterns, the harmonica parts [and] the electric bass line parts.”
But according to Joe Bennett, a forensic musicologist and a professor at Berklee College of Music, “Ghost Town” flatly does not include those elements from Fernandez’s songs. Full stop.
“It simply doesn’t,” Bennett says. “These elements are not the same when compared — all the notes and chords are very obviously different. It’s significant that the complaint doesn’t contain any music notation, because a simple side by side transcription would demonstrate the dissimilarity.”
So then why do the songs sound similar? Bennett says it’s because they share an overall vibe – based on mid-tempo rock grooves in the key of A minor – that’s been ubiquitous in rock and blues since the beginning. Without much digging, he pointed to at least four other songs that sound pretty similar, including B.B. King’s rendition of the “The Thrill Is Gone.” But those commonplace musical tropes cannot be monopolized by one band under copyright law.
“The similarities we hear aren’t protectable elements, and certainly not the intellectual property of Mr. Fernandez,” Bennett said. “The Stones didn’t copy from Fernandez, because they didn’t need to; they’ve been playing grooves like this for a very long time, as have many others.”
Beyond such musical problems, the case against the Stones also potentially suffers from a simpler legal flaw.
In any copyright lawsuit, an accuser needs to show that the alleged infringer had “access” to their work in order to copy it. In cases involving big songs – like in the looming trial against Sheeran over Marvin Gaye’s iconic “Let’s Get It On” – a plaintiff can easily argue that the song was so widely-available that the defendant obviously heard it. But the case against the Stones involve songs of far less renown; when the lawsuit was first filed, the allegedly-copied “So Sorry” listed less than 1000 streams on Spotify.
Faced with that situation, Fernandez instead aimed to directly show how the Stones might have heard the song. In his complaint, his lawyers wrote that he gave a demo CD to “an immediate family member” of Jagger, who then allegedly confirmed in writing that the songs had “a sound The Rolling Stones would be interested in using.”
But according to James Sammataro, a veteran copyright litigator and the co-chair of the music group at at the law firm Pryor Cashman, those arguments fall well short of what’s required under law.
He noted that the complaint “conspicuously” failed to name that family member, and also did not directly claim that they had actually handed the song off to Jagger or had been involved in creating “Ghost Town.”
“A charitable read of the complaint is that plaintiff purportedly gave his demo to a family member of Jagger who might have passed along the demo to Jagger, but that plaintiff have no idea whether it actually happened,” Sammataro wrote. “Such speculative allegations are far too attenuated to infer a reasonable possibility of access. If there was a strong claim of access, the plaintiff would have presumably pled it.”