Case presented by: Errol Michael Henry
If you have yet to read case study 001 (Intimate Music Versus Atlantic Records Inc), here is a brief summary. Intimate Music entered into a recording agreement with Atlantic Records in February 1998. That agreement was breached by Atlantic and by way of settlement: the ownership of the rights to the music created during the term of the agreement were transferred to Intimate Music (in a settlement agreement dated 25th May, 2000). Simply put, Atlantic Records (and by extension, Warner Music Group) has no rights to anything created by Intimate Music during the terms of the now redundant original recording agreement and any exploitation of those recordings by Atlantic Records would be illegal (by any definition of the word). The value of any agreement is ultimately measured by the integrity of the parties concerned and in that regard, my experiences with both Atlantic and Warner Music Group proves beyond doubt that they have real problems adhering to legal agreements.
In order to settle the claim arising from the illegal use of my property by one of the largest music conglomerates in the world, I was required to sign a confidentiality agreement that strictly forbade me from accusing Warner Music of any wrongdoing. I have no intention of falsely accusing anyone, of anything they did not do, but to suggest that Warner Music did nothing wrong in respect of their illegal use of my intellectual property would require me to lie in order to cover up their disgraceful behaviour – something I am simply not prepared to do. Some large corporations operate in the belief that laws were designed for other people to obey, while they flagrantly disregard those same laws when it suits them.
Not once, but twice I have had to fight to assert my rights with a company that shows zero regard for the sanctity of contracts. Atlantic Records & Warner Music Group are part of the same family and you can tell a lot about a family by their stated values. I am a reasonable person and I acknowledge that human beings are fallible and as such, if someone confesses to making a genuine mistake, that at least demonstrates that they posses of a measure of integrity. Alas, I have found no such signs of anything remotely approaching decency in my dealings with either Atlantic Records or their parent company Warner Music Group. During the course of this case study I will demonstrate their propensity for deceit and arrogance that has to be experienced to be truly believed. I will use extracts from documents drafted by their own hands – and leave you to draw your own conclusions.
My intense struggles to get Atlantic Records to return my copyrights to me are well documented in case study 001 and I was glad when the whole thing was over because it meant that I could begin the long and difficult process of rebuilding my life and my business in the delightful knowledge that I would never need to deal with them ever again – or so I thought. I was told in November 2013 that a recording that I own (“Thank You” by True Solace) was featured on a compilation that had been released by Warner Music Japan earlier that year. I dismissed the suggestion because I knew such an occurrence was legally impossible. As the sole owner of that piece of music, nobody at Warner Music could possibly have commercially exploited my property without my permission – especially in light of our previous encounters.
Not for the first time in my life, I had seriously underestimated others capacity for theft. I am a simple man, with a simple outlook on life. If you take something that does not belong to you: that’s theft. By the same token if you make statements that are not true, you are a liar. I can prove (very easily) that Warner Music steal and lie in order to cover their tracks. I don’t wish to speculate as to whether they perpetrate such acts on other people – but I can (and will) prove unequivocally that they both stole from me and lied once confronted about their illegal actions. Upon further investigation, it transpired that Warner Music Japan had released a CD entitled ‘New Healing Gospel’ in March 2013. The irony of this reality was not lost on me. My absolute refusal to take the gospel out of that specific song led directly to Atlantic ending the agreement without fulfilling all of its legal obligations, so to discover that the same song had made it onto a release by an associated Warner company in Japan resonated with me for reasons that I will expand upon later on.
It took quite a while to find the right person at Warner Music Japan who could speak with any authority on the subject and to my absolute astonishment he told me that he had sought – and gained authority from Atlantic Records to use a recording that they know full well that they didn’t own and had no right whatsoever to exploit without prior written permission. I keep hearing about the efforts being made globally to prevent piracy: perhaps those charged with such tasks should pop over to Warner Music to see who else’s music they may have used with out permission because their answer when challenged on the subject gave me great cause for concern. Once I had written confirmation from Warner Music Japan that the real issue related to permissions (illegally) granted in the USA, my next call was to Atlantic Records in New York.
After being bounced from pillar to post I was eventually advised that all catalogue related enquiries were now being handled by Rhino Records (another Warner Music subsidiary based in Los Angeles) so I made contact with Tracie Parry: who is their Senior Director for Catalogue, Legal Affairs and Recorded Music Rights. I wrote to Tracie in February 2015 to advise her that Warner Music had breached the settlement agreement of May 25th, 2000 by illegally granting permissions to catalogue that it did not own. Her response was typical of the replies I get whenever I call major music companies to account: “According to our records we were granted perpetual rights for the world ex-UK under an agreement dated as of February 17, 1998.”
In each instance that I have required global conglomerates to release my property, they have asserted their right to keep what does not belong to them. Why was Tracie Parry able to locate the original document that assigned my rights to Atlantic records in 1998, yet (supposedly) blissfully unaware of the agreement dated nearly 2 years later that reverted those rights in their entirety back to me? It’s gets better. She then asked me to prove that any such revision even existed. Needless to say, after (not so gentle) persuasion from me she eventually found the document related to the termination of rights in May 2000 and suggested that she and I speak on the phone to find a resolution to the problem.
After all of my years in this business I honestly did not believe that there was anything left that would shock me, yet I was clearly quite unprepared for what she had to say to me during our call. I asked her why nobody at Warner Music had bothered to check that they had permission to grant the use of my recordings – before doing so: only to be told that no such protocols exist within their system for such scenarios. My next question was: “how then do you ensure that everything you currently have available on the market is actually yours to use?” I am still awaiting a coherent answer.
My sheer disbelief at the casual approach such a large company has towards other people’s property turned to sheer fury when she ventured her next line: “stuff gets used without permission all of the time and it really isn’t a big deal. I deal with these issues everyday.” I told her in no uncertain terms that I didn’t deal on a daily basis with the reality that the 3rd largest music company in the world could illegally exploit my property and not see why such a realisation would give me cause for anger. I asked her what would happen to me if I decided to commercially exploit intellectual assets belonging to Warner Music without prior permission – she advised me that any such action would initiate a robust legal response from the company as protecting its music rights was of paramount importance. I explained to her that protecting my legal property was equally important to me and that “we didn’t know” – is a shocking, disgraceful, and utterly unacceptable response to a clear and undisputable case of blatant copyright breach.
My company is small. By any measurable standard, we are a tiny little organisation. Is that why companies the size of Warner Music believe that the copyright laws that are supposed to govern the whole music industry don’t apply to them? If I had not been advised that my recording was being used without permission, Warner Music would have continued to collect revenue from a piece of intellectual property that did not belong to them. Had I not been sufficiently clued up from a legal perspective, even when confronted with clear evidence of wrongdoing: Warner Music would have persisted with the false statement that they were within their right to abuse my rights ‘perpetually’.
Forever seems like a long time, but that’s precisely the period of time Warner Music would have continued stealing from me – had they not been forcibly stopped. Copyright abuse is a long-standing problem that has blighted the music industry for years. When small companies do it, they are called ‘pirates’ – but when larger companies do exactly the same thing, they use their sheer size as an excuse for flagrant theft.
The Settlement and The Silence
Part of the reason that companies like Warner Music don’t bother to build robust systems to ensure that they never steal other people’s property (knowingly or otherwise) is that they know that the penalty for any such breaches is relatively ‘affordable.’ Pursuing legal cases through the courts is ruinously expensive and due to the complex nature of copyright law, juries are often baffled by the semantics of the small details: meaning that firms with sufficient ‘buying power’ can simply keep throwing money at the problem until the opposing party runs out of money. I sought legal advice when this new breach of contract came to light and ‘settle it’ was the counsel I received. To this end, I signed an agreement that ensured that all of the royalties generated from my recording were paid and the offending album removed from sale.
Until companies start to face punitive damages and the fines they face exceed the revenue they hoped to attain, instances like those outlined in this case study will continue unabated. The other big issue is that even when companies like Warner Music are caught red-handed abusing other people’s copyrights, non-disclosure agreements (NDA’s) are often a condition of any agreed settlement. It is far from right that an International behemoth the size Warner Music can openly steal and fiscally profit from other people’s property – then hide behind NDA’s that only exist at all because of their utter disregard for legal agreements! To that end, I have decided to talk about this case because staying silent is simply not an option. The whole purpose of me founding Music Justice is to facilitate change within the music business. For too long, people have been ripped off and disrespected by larger firms who then threaten them with all sorts of legal ramifications if they dare to speak up.
I cannot expect others to stand-up to such threats and intimidation if I do not do so myself. The original purpose of law was to compel humanity to recognise that it had fallen foul of moral standards. How can it be that companies break the fundamental laws of morality (stealing is always immoral – even when it is not necessarily illegal); then demand that they retain the legal right to have their nefarious deeds kept secret? How will change ever come to pass if wrongdoing is not exposed for all to see? Performers need to know whom they are really doing business with so that they can make more informed choices. I can’t speak for anyone else on this subject but I can with absolute authority declare that neither Atlantic Records nor Warner Music regard contracts as sacrosanct.
I am certain that had I breached my agreement with Atlantic and tried to sneak away without facing up to my actions, they would have mobilised an army of lawyers to purse me to the four corners of the earth. I am equally persuaded that had I decided to help my self to a much treasured recording from the Warner Music catalogue – just because I felt like it, they too would have used every instrument at their disposal to bring me to heel: if only to dissuade others from stealing their music at will. To my mind, those who live by the sword essentially choose their own end. I don’t see any reason to remain silent when every single word I have related in this case study is not only true, but is also very easily proven.
The Time to Be Resolute
I have for your convenience included a photograph of the front cover of the CD that was released by Warner Music Japan in March 2013. You can also see the track listing showing ‘Thank You’ by True Solace and Warner Music as the label releasing the album. What you will not find – because no such document exists, is their evidence that they had any right to use that song. The other thing you will not find because again, no such document exists is their admission that they did anything wrong. Before writing this case study I was compelled to re-read every shred of related documentation. What I did not find anywhere was any acceptance on behalf of Warner Music that they did anything wrong by selling music that does not belong to them. I found no apology for the stress I endured, firstly by discovering that the same brazen liars that had caused me great distress before – simply couldn’t resist the urge to injure me again. You will note the phrase “Unauthorised Use” in the extract shown in the photo. “Theft” is a better word but would require a conscience that is in decent working condition to know the difference.
The heading: “No Admissions” is also worthy of total ridicule. How can Warner Music demand ‘no admission’ as a right when it is obvious to the blindest of blind men that they took what did not belong to them for the sole purpose of material gain: with no regard for the rights of the legal owner? “Nothing shall be construed as an admission of any liability” – how very convenient. I can’t agree with the premise that it is OK to steal, to lie and then to plead innocence, when all of the available evidence says otherwise. If Warner Music want their business dealings to be kept out of the public eye then I suggest they keep their sticky fingers out of other people’s pockets. The facts of this case are very simple indeed. A massive global company stole from me – fully intending to keep their ill-gotten gains, and fully intending to continue abusing my intellectual rights for all eternity.
I will not be bought off or silenced in any way. I did not pick a fight with Warner Music. I did not wantonly grant permission for others to illegally exploit their intellectual property – but they did precisely that to me. No, I did not start this fight, but rest assured that I will finish it and I won’t sit in silence while bullies rob, lie and intimidate with impunity.
Warner Music might well prefer to do their business under the shadow of darkness but their illegal actions in this regard are going to receive a considerable bathing in the brightest light that I can procure. Contrary to the popular phrase, “silence is not golden.” In this instance silence represents evidence of complicity and my conscience just will not permit me to be so categorised. Speaking up in this way is not without risk for me, but staying silent represents a fate far worse, so I will declare the truth and leave others to comfort themselves with their bare-faced lies. If Warner Music posses evidence to refute anything I have presented here, let them offer it up for examination. Failing that: let them hang their thieving heads in shame and keep their lying mouths shut.