On February 12, George Clinton brought the latest iteration of his P-Funk Allstars to New York’s B.B. King Blues Club & Grill. A few hours before the band would treat a jam-packed house to a raucous, three-hour set featuring such hits as “One Nation Under a Groove,” “Flashlight,” and “(Not Just) Knee Deep,” the 71-year-old Clinton sat at a table draped in red cloth and spoke to a sparse audience about the long-running legal fight he has waged to reclaim control of his back catalog.
The “Godfather of Funk”—who favors a clean-cut style over his trademark look of long dreads and colorful clothing these days—was dressed in a black suit and fedora adorned with a red and white feather. He had called the press conference to announce a petition drive aimed at persuading government officials to review the copyright filing process. In a statement issued by his management in advance of the session, Clinton said soberly that he wants to be remembered for calling attention to the issue of protecting artists’ copyrights. “That’s what I would like my legacy to be," he said in the statement, “to have turned people on to the fact that they need to fight for their rights to their music.”
In person, the man whose other signature songs include “Atomic Dog,” “Freak of the Week,” and “Maggot Brain,” described his mission in more colorful terms: "I want to say we gonna fight this shit until we make noise, so much noise that everybody will know what the fuck we’re talking about.”
Clinton has been making records for 54 years and making noise about copyright issues for more than a decade. His latest copyright push comes on the heels of an unusual, possibly precedent-setting federal court order that threatens to sully one of his rare wins on the intellectual property front—and puts him at odds with a law firm that played a role in securing that victory.
In November, Seattle federal district judge Robert Lasnik ruled [PDF] that Clinton must cede the copyrights to the master recordings of four Fundadelic albums released by Warner Bros. between 1976 and 1981—Hardcore Jollies, One Nation Under a Groove, Uncle Jam Wants You, and The Electric Spanking of War Babies—to Seattle-based Hendricks & Lewis to make good on more than $1.5 million in unpaid legal fees. Hendricks & Lewis, which is being represented in its efforts to collect the unpaid tab by Davis Wright Tremaine, racked up at least some of those bills helping the 1997 Rock and Roll Hall of Fame inductee win control of those copyrights in the first place.
Clinton’s stepped-up copyright crusade also comes at a key juncture in the broader IP war between record companies and artists. Thanks to a 1976 change to U.S. copyright law, 2013 is the first year that musicians can use so-called termination rights to assert legal control of the copyrights to master recordings of songs made at least 35 years ago. According to Billboard, artists like Devo, Pat Benatar, and Billy Joel had already filed termination claims as of December 2012. At his February 12 press conference, Clinton said he is set to join them: “We’re going to be fighting for this, and you’re going to hear a lot about it.”
America’s Most Sampled
Clinton’s current effort to assert ownership of his creations began 14 years ago when he sued Bridgeport Music Inc. alleging that his signature had been forged on documents assigning the rights to more than 170 songs he wrote between 1976 and 1983—including some of his best-known compositions—to the Southfield, Michigan–based publisher and its president, Armen Boladian. In 2001, a federal district court judge in Florida ruled against Clinton and awarded Bridgeport those rights.
The company immediately moved to cash in on Clinton’s popularity with a new generation of recording artists who had leaned heavily on snippets of his classics in making their own records. (The Los Angeles Times once noted that Funkadelic’s "One Nation Under a Groove" was among the songs most frequently sampled by rap and hip-hop producers.) In an initial litigation barrage, Bridgeport sued more than 800 artists and labels—from the Black Eyed Peas to Lil Wayne to N.W.A—for copyright infringement. In one case, the publisher won roughly $89,000 in damages from Universal Music Group in connection with the band Public Announcement’s use of the “Atomic Dog” refrain "Bow wow wow, yippie yo, yippie yea.”
Clinton got a measure of revenge four years later when he reclaimed ownership of the master recordings for the four albums at issue in his dispute with Hendricks & Lewis by winning a suit against a group that included Bridgeport, former bandmates, and one-time business associates. The federal district court that decided the case ruled [PDF] that Clinton’s ownership of the recordings dated to 1993, meaning he was entitled to seek compensation from record companies that had earned royalties on the albums going back that far.
Hendricks & Lewis—which has represented such other well-known music industry names as Courtney Love and Jimi Hendrix’s father, Al Hendrix—was among the firms Clinton retained to wrest control of those copyrights. The firm’s website features a page touting its work for him in trials and appeals in several states. On his bio page, name partner O. Yale Lewis Jr., a former associate at Davis Wright predecessor firm Davis, Wright, Todd, Riese & Jones—lists Clinton as one of his celebrity clients.
From Allies to Adversaries
Hendricks & Lewis’s work on Clinton’s behalf from 2005 to 2008 included suing Capitol Records Inc. and Priority Records in federal district court in California for compensation related to Priority’s 2002 rerelease of the four Funkadelic records. That litigation ultimately resulted in what the firm describes as "a favorable negotiated settlement" that media reports pegged at $1.2 million. Hendricks & Lewis also represented Clinton in suits against Capitol and Universal Music Group over royalties connected to samples taken from the Funkadelic masters.
By August 2008, though, court filings show the relationship between firm and client had soured, with Hendricks & Lewis cutting ties to Clinton over what it claimed was his failure to pay his bills. Two years later, lawsuits brought by the firm in federal court in California and Washington State led to judgments against Clinton totaling just over $1.7 million. When he failed to pay that tab in full, Hendricks & Lewis returned to court in an attempt to collect directly from his royalty streams. Though a district court judge rejected the move, the firm is appealing that decision.
Clinton, meanwhile, launched a counterattack on the firm via a malpractice suit filed in federal court in Seattle in which he claimed that Hendricks & Lewis had erred in suing Universal for breach of contract and should have hit the company with fraud claims instead. After the suit was dismissed in April 2012, Hendricks & Lewis filed yet another action aimed at recovering the legal fees it claims it is owed. (As of November 2012, court filings show, Clinton had paid the firm $340,000.)
In ruling that the firm could attempt to recoup the unpaid fees by taking ownership of—or even selling off—the copyrights on the four Clinton albums, Lasnik acknowledged the novelty of his decision. "The court has not found any reported case authorizing the relief afforded herein,” he wrote. For that reason, he stayed his November 27 order for 30 days to allow Clinton time to appeal the ruling. (Lasnik also granted Hendricks & Lewis’s motion for an order of contempt [PDF] against Clinton over his alleged failure to produce documents related to his personal finances.)
Clinton did file an appeal with the U.S Court of Appeals for the Ninth Circuit, and briefs are due April 17. Davis Wright represents Hendricks & Lewis in the case, while Detroit lawyer Jeffrey Thennisch is representing Clinton, with Eric Fong serving as the musician’s local counsel. Neither Thennisch nor Fong responded to The Am Law Daily’s requests for comment. Hendricks & Lewis name partner Katherine Hendricks declined to comment.
Give Up the Funk?
It doesn’t surprise Winston & Strawn partner Michael Elkin—who chairs the firm’s copyright, entertainment, and digital media practice—that Lasnik had trouble finding an example of another judge ordering similar relief.
"It’s very unusual that you have this kind of situation," Elkin says. While agreeing that copyrights qualify as property a court can seize and transfer, he says it’s much more common for lawyers suing over unpaid fees to go after the revenue streams copyrighted material can produce. Hendricks & Lewis would almost certainly be happier, Elkin says, to just get the cash directly from Clinton than having to go through the process of trying to squeeze revenue out of the copyrights on its own. "There’s a whole lot of work that goes into this," he says, adding that law firms are generally "not in the business of actually exploiting these copyrights."
Davis Wright litigation partner F. Ross Boundy, who represents Hendricks & Lewis in the matter, doesn’t disagree. “We’d be delighted, of course, if Clinton would say, ‘I don’t want [the copyrights] to be sold. Here’s your money,’” says Boundy, adding that his client must now rely on a court-appointed receiver to determine how to create value from the recordings. At the same time, Boundy says, Lasnik’s ruling essentially attached a lien on the Clinton copyright. “It’s property that he owns,” he says, “So it’s like any other piece of property.”
Whether the appeals court will affirm Lasnik’s ruling remains to be seen. In the meantime, Clinton—who for years has encouraged his fans to “ give up the funk"—appears unlikely to give up the fight. As he said at B.B. King’s, “I ain’t trying to play nice . . . because they haven’t been nice to us.”