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Legally Speaking

 

Issue: December, 2007
Author: Mary Angell

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Ever Done Copyright Litigation: Check yes or no

Through his representation of songwriters and music publishing companies, Jackson attorney Paul Stacey knows all about music piracy and karaoke, has followed the rise of unauthorized sharing of music on the Internet and has even taken on the Barbie© empire. As a copyright attorney, he protects the rights of people he’s usually never met, whose work he may not be familiar with or even like.

“I’m lawyering on their behalf full time, but not listening to their music as much as I would like. And as strange as it may sound, in virtually every copyright case in which I’m now involved, inevitably there is some music – rap music readily comes to mind – that would make me physically ill if I listened to it,” he told the Wyoming Lawyer recently. “That’s one of the ironies of what I do. For the most part though, the copyrights are for the most popular and best loved songs of all time.”

Always a sole practitioner, Stacey has litigated almost every type of case: personal injury, professional liability (medical and legal), commercial and divorce; even the occasional criminal defense case. “I’ve been very fortunate to get all kinds of litigation experience, even appellate practice work, from very early on,” he said. “When I started out, I’d take whatever I could get to make ends meet…and was fortunate enough to get all I could ever dream of.”

Now all he does is copyright litigation.

Stacey grew up in Wheaton, Illinois, completing his undergraduate and graduate work in English at the University of Illinois. He graduated from John Marshall Law School in 1979 and practiced law in Wheaton for 10 years before coming to Wyoming.

Stacey first visited Wyoming in 1986. He spent Thanksgiving with some friends in Colorado Springs and decided to visit another friend in Jackson “on a fluke.” “I had thought Colorado was God’s gift to the world, but I fell in love with Jackson instantly,” he said. “I owned a home there in less than nine months. It was an extraordinary, life-changing, wonderful thing to happen to me to discover Wyoming. I took the bar exam and started spending more and more time in Jackson, and taking on cases.”

Now Stacey’s time is split between Jackson (“…thankfully, the greater share”) and Wheaton, where he still has a home, a law practice and most importantly, a 15-year-old daughter named Amanda.

Most of his cases are in the United States District Court in Nashville, Tennessee. And, he admits “occasionally Federal Court in L.A. or Frisco.” But compared to local practitioners in Jackson, he seldom needs to go to court, traveling to Nashville “…maybe fifteen times a year.”

“Oral argument on a motion is practically unheard of. A lot of times, liability issues in these cases are decided based on the pleadings and affidavits on file,” he said. “It’s not an over-generalization to say of defendants: ‘they either have licenses or they don’t.’ (And if they did, I wouldn’t be suing them). When summary judgment is imminent or has been granted, more often than not, the case is settled.”

Stacey said his journey to copyright law is a classic case of one thing leading to another. It began when he met a securities advisor for some very wealthy individuals and estates.

“As it turned out, I actually met him by undertaking representation of an adversary in a lawsuit. I prevailed in one case that involved a franchise business. (The owner was trying to exit and I found a way for her to sell the business location out from underneath the franchisor.) She sold it to a group headed by the fellow who ultimately became my client,” Stacey said. “He called me up a month later and said, ‘I was impressed with you.’ I ended up representing and trying on his behalf nine different lawsuits.”

The gentleman launched a music publishing company in Nashville in 1992, and the first time he needed an attorney, he called Stacey. The case involved the writer of the country song “Check Yes or No.” It wasn’t 48 hours from the time the president of the upstart music company first heard the song, that he immediately saw its potential and signed the rookie songwriter to a contract. The song was then pitched to George Strait, who recorded it and made it a No. 1 hit.

“When that song went #1 practically overnight, that young songwriter, who had never had so much as a cut (music lingo for having a song recorded), decided he wanted to break his contract and take the copyright back,” said Stacey. “I represented the publisher and the president of the company. We obtained summary judgment on most counts, and in the end secured the copyright and the enforceability of the songwriter’s agreement. “A funny thing, the actual George Strait recording of “Check Yes or No”… I had never listened to it, had never heard that song until very nearly the end of the 2 ½ year lawsuit,” he said.

His next copyright case involved Mattel and a toy called “The Barbie© Karaoke Machine,” in which he represented a group of music publishers and songwriters, including Encore Entertainment, a successor music publishing company to his first publishing client, Warner/Chappell Music (one of the four largest publishers in the world) and Famous Music (at that time, the music publishing arm of Viacom).

Keith Follese, one of Encore’s songwriters who had written three or four #1 hit songs in a single year, discovered the copyright infringement while at a birthday party with his 8-year-old daughter. While chatting with some other parents, he heard the girls singing one of his songs (“The Way You Love Me,” a #1 hit recorded by Faith Hill) to the music and lyrics being played from the birthday girl’s new “Barbie© Karaoke Machine.”

It turned out that the Mattel toy -- the third-largest selling toy in the world that year -- used 24 songs, including some of the most popular pop and country songs of all time, without authorization.

“Some people say they ran roughshod over the intellectual property rights of the writers and publishers to get it on the market for Christmas ‘02,” said Stacey.

“I viewed that skeptically because, even after it was on the market, they didn’t initiate a belated licensing process; rather, they had to be discovered, then told to stop and then sued,” he said. It took over a year to resolve the case. It was settled 10 days before trial was to begin.

“Suffice to say it was a very satisfying case to litigate, even if I didn’t get to try it,” Stacey said.

Within six months, he was hired again by Famous Music to represent it and “Eight Mile Style,” the management/publishing company for the rap artist known as “Eminem.” Another copyright infringement case, this one involving more than 100 copyrights.

“We had a very satisfactory settlement within 30 days,” Stacey said. “They continued to hire me. Two cases are still pending in the name of Famous, even though it was acquired from Viacom by Sony last July.”

Stacey said he’s able to spend most of his time in Jackson, and his copyright work has been a real godsend.

“It’s been a blessing in every conceivable way,” he said. “It’s certainly very rewarding financially. And it’s allowed me time to do things I like to do such as fish, ski and play golf.”

Thanks to today’s technology and trends, Stacey probably won’t be running out of work anytime soon.

“The thing that has generated the now growing list of copyright infringement lawsuits is the fact that technology has allowed for the sharing of recorded music with such ease. The world has been awash in music copyright infringement over the last seven years,” he said. “One I’m focusing on a great deal now is the illegal downloading of songs and file sharing of songs involving the Internet.”

Stacey referred to the recent ruling in federal court in Minnesota (a case in which he did not participate), when a 30-year-old woman was ordered to pay $222,000 to record companies for sharing music online. She was ordered to pay $9,250 in copyright infringement damages for each of 24 songs – a meager penalty compared to the maximum statutory damages award of $150,000 per infringement.

“With copyright infringement cases, as some of these cases hit the headlines, the defendants become more compliant. You can obtain more favorable results for your clients,” Stacey said. “The likely result for the defendants is catastrophic. They’re going to be ruined.”

He sited the recent copyright infringement case Zomba Enterprises, Inc. vs. Panorama Records, Inc. in which the Sixth Circuit Court of Appeals upheld the district court’s award of $806,000 in statutory damages to the plaintiff. The Appeals Court ruled that although the award of statutory damages was 44 times the amount of actual damages, it was “not sufficiently oppressive to constitute a deprivation of due process.”

The suit forced Panorama, a manufacturer and distributor of unlicensed karaoke discs, into bankruptcy. “This is a very scary ruling for people who are stealing music on a commercial level,” Stacey said. “The staggeringly high damages that can be awarded for copyright infringement will surely have a deterrent effect.”

But the commonly held belief that there’s nothing wrong with sharing recorded music and misconceptions about songwriters combine to lead the public to ignore copyright laws.

“Some people resent them,” Stacey said. “They think so many of these songwriters/performers are so wealthy they don’t need the money. It may come as news to them, but this is truly how songwriters put bread on the table --- 12 cents here and 8 cents there. For the vast majority of writers, if they’re not getting it, not only are they not going to be millionaires, they’re literally not going to put bread on the table and shoes on their kids’ feet.”

Just as songwriters aren’t always as glamorous as people think they are, Stacey’s career may not be as sexy as some people imagine when they hear he handles copyright cases for musicians. It’s not like he spends his time with pop stars and rock and roll legends.

But in his younger days, he did meet singer Jimmy Buffet and hang out in Wheaton with actors Jim and John Belushi.

“I spent way too much time in the local pool hall with both of those characters,” he said.


Mary Angell is a freelance writer from Cheyenne, Wyoming, and a regular contributor to the Wyoming Lawyer.


Copyright © 2007 – Wyoming State Bar

     

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