Archive for October, 2007

Clay Walker’s “Fall” Video

Together with Clay Mills and Shane Minor, my new client Sonny Lemaire is one of three songwriters on Clay Walker’s new single, Fall, featured in the video link above.  The song is currently climbing Billboard’s Hot Country Songs chart and, after a 31-week run so far, is breaking well into the top ten!  Expect it to hit the top five very soon!

If you’re as old as I, you may remember Sonny’s old band from the Seventies, Exile, particularly their 1978 blockbuster hit Kiss You All Over, which was number one on the pop charts for over a month and had a chart life of 23 weeks.  The Exiles toured with many of the other greats of that glittery era, Boston, Heart, Aerosmith and Seals & Croft.  Sonny either wrote or co-wrote many of the band’s greatest hits.

Since that time Sonny has spent his time in Nashville’s songwriting community.  He was named BMI’s Songwriter of the Year in 1986 and has over 500 songs registered with the performance rights organization.  In 2002, he scored big with another number one song Beautiful Mess, recorded by Diamond Rio, which was also co-written by Sonny, Shane Minor and Clay Mills.  Sonny is no stranger to number one hits, however, since he has scored over ten in his illustrious career and has over 17 other BMI awards and honors.

My wish is that Sonny makes it to the top of the charts again! Sonny now lives in middle Tennessee with his family and continues to crank out hit songs.

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There appears to be a slight ripple of a trend among courts to take a stricter look at the evidence being presented by the RIAA in its crusade against digital downloads, based primarily on the evidriaa2ence of user names and IP addresses assembled by their expert consultants, MediaSentry. 

In the RIAA’s case against Jeff Dangler, filed in the U. S. District Court for the Western District of New York in Rochester, Dangler failed to file a response to the Complaint, and the Clerk entered the default against him.  Pursuant to Federal Rule of Civil Procedure 55(b)(2), the Plaintiff can then apply to the judge for a judgment based on the default.  In addition, Fed.R.Civ.P 55(b)(2) gives the judge the option to conduct hearings and hear evidence in order to determine if the damages requested are justified.  This gives the judge the opportunity to evaluate the merits of the underlying claim and, if he finds it to be deficient, deny a judgment on the default.

On October 23, 2007, U.S. District Judge David G. Larimer denied a 55(b)(2) request by the RIAA for a default judgment of $6,420 in Atlantic v. Dangler.   Judge Larimer specifically ruled that there were “significant issues of fact” in the record “as to the identification of the defendant from his alleged ‘online media distribution system’ username” heavyjeffinc@KaZaA.  The court points out that there is no evidence presented that established a time period of the alleged distribution and/or infringement nor are there details sufficient to determine whether, in fact, the defendant is the user so identified. 

Because of these deficiencies, Judge Larimer determined that he would hold a hearing to allow the Plaintiffs to establish additional evidence that a copyright violation was committed by the defendant.  You can read the full text of the judge’s order here.

Previously, in August 2007, a similar 55(b)(2) request was denied by Judge Rudi Brewster in Interscope v. Rodriguez in the U.S. District Court for the Southern District of California.  In that case, Judge Brewster held that “Plaintiffs . . . must present at least some facts to show the plausibility of the allegations of copyright infringement against on th[is specific] defendant,” citing the recent U.S. Supreme Court decision in Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) that more than a mere recitation of the elements of a claim are necessary to find relief.   Basing his decision on facts similar in nature to Dangler, Brewster concluded that the RIAA’s complaint failed to state a claim upon which relief could be granted.

These decisions arise in districts where the judges are, generally speaking, more technically saavy than some other districts where these types of issues do not arise as often.  In a somewhat related case, the Ninth Circuit, the appeals court that has jurisdiction over the California district courts, one bankruptcy court has already established stricter standards of proof for establishing the veracity of computer records.  For more information, see the informative article entitled Admitting Computer Record Evidence after In Re Vinhnee:  A Stricter Standard for the Future?, by Cooper Offenbecher.  In short, this article discusses the interplay between Rules 901 and 803(6) of the Federal Rules of Evidence and their application to digital business records.  Essentially, without getting into the details, there is a hearsay exception for business records allowing their admission as evidence in a trial if they are maintained in the regular course of business and are relied upon by the business.   It is these sorts of dialogues that must inform the judges as they scrutinize the evidence presented by the RIAA in support of infringement claims, whether they be in the course of a default judgment or in the course of a trial.


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Perhaps Porter Wagoner should be remembered as the original “Rhinestone Cowboy” because of his penchant for sparkling two-piece rhinestone often adorned with wagon wheels and other cowboy themes — at one point he owned over 60 suits. 

The longtime country music legend died at 8:25 p.m. CDT in a Nashville hospice Sunday night at the age of 80 from complications resulting from lung cancer.

Born in the Ozark Mountains of MisPorterDollysouri, Wagoner was a regular on the radio show “Ozark Jubilee.”  He signed his first record deal with RCA Records in 1955.  Two years later, he joined the Grand Old Opry, where he was a perennial favorite.  In 1960, he appeared on “The Porter Wagoner Show,” one of the first syndicated shows to be produced in Nashville, which had a 21-year run.  He was elected to the Country Music Hall of Fame in 2002.

Not only was Wagoner a consummate performer, but he also wrote many great classic country songs, one of the most memorable of which was Green, Green Grass of Home

Wagoner is also credited with giving Dolly Parton her first big break.  He hired the then-fledgling young artist in 1967 to be his duet partner.  That relationship produced a string of hits, but finally ended in a lawsuit that was settled in 1980 for an undisclosed amount.

Wagoner had recently signed a new record deal and produced his last and final album, Wagonmaster, with Marty Stuart.  It was released in June to critical acclaim.

The loss of this great legend is felt throughout the Row today, but there is perhaps a new constellation in the sky, the Rhinestone Cowboy.

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Earlier this week, Tom Baldrica, vice mcbee president of marketing at Sony BMG, announced that Heather McBee has been promoted to vice president of digital business.  McBee, who has been with the label for 14 years, was formerly senior director of that department.

Baldrica said in a prepared statement:

“I’m so proud of this promotion.  Heather has demonstrated constant growth and leadership skills in building her new media band-of-one into a full-fledged digital business department.

Originally from Clarksburg, West Virginia, McBee interned with BNA Records while attending the music program at Belmont University and was employed as a sales assistant upon her graduation in 1993.  Through various mergers and acquisitions among the various labels, she ended up with Sony BMG.  In 1997 she was picked to head up a newly formed research department which eventually evolved into the Digital Business and New Media department.  She was appointed director of that department in 2003.

A part of Leadership Music’s 2007 Digital Summit, McBee is quoted as saying

I had the fortitude to stick it out when everybody was saying “no.”

McBee credits label group chairman, Joe Galante for allowing her flexibility to prove the viability of her ideas about the future of the industry:

He asks that things be quantified. He gave me freedom to experiment…as long as I tempered my excitement and made it fit our goals and what we were doing.

Among other things, McBee was influential in moving Sony BMG into the cellular ringtone business.


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Propelled primarily by the sales of 2.5 million copies of the new Harry Potter book, Amazon’s profits reachamazonoct242007 ed the stratosphere in the 3rd fiscal quarter of 2007.  The company announced its third-quarter earnings in an online conference call on Tuesday, announcing a profit of $80 million, three times the $19 million it earned in the third quarter of 2006.  Amazon reported sales of $3.26 billion, up 41% from $2.31 billion in the quarter last year.  The company expects its overall 2007 net profits to be up by 33-36%, or somewhere north of 14 billion dollars.  A replay of the webcast announcement can be heard on Amazon.

As you recall, my earlier interest in the announcement stemmed from the company’s September release of the public beta of its DRM-Free music download store.  While generally overshadowed by the Harry Potter sales, Amazon’s Chief Executive Office, Jeff Bezos, did comment on the digital downloads, saying in the conference call that the company was happy with early results from the store.

"We are getting terrific feedback from customers," he said,  Everybody loves the DRM-free format. Now the onus is on us to continue to convince music labels that this is a good way to sell their music."

Little more can be gained from the announcement with regard to the actual sales of MP3s.  Hopefully more data will be released in the 4th Quarter announcement.  The company intends to expand its digital offerings later this fall by introducing an electronic book reading device and offering downloadable e-books.

According to one research firm, Hitwise, Amazon is the leading benefactor of the web’s double-digit increase in web commerce retail sales, garnering 11.5% of the increase in traffic, followed by Wal-Mart, which received 5.4%.

Amazon, a Fortune 500 company based in Seattle, Washington began operations in July 1995.

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The Nashville Chamber Orchestra’s next installment of its Acoustic Cafe series is next Friday, November 2nd at 8 p.m. in the Grace Chapel, located in Lieper’s Fork, Tennessee.  The event will feature resident musician, Darrell Scott, and the Acoustic All-stars, which, together with the NCO, consists of Dan Dugmore, Stuart Duncan, Viktor Krauss, Kenny Malone, and Bryan Sutton. 

NCO was founded in 1990 by Music Director Paul Gambill.  It is recognized as one of America’s premiere chamber orchestras. It’s trademark Music Without Boundaries has led to critical acclaim as well as numerous recordings for Warner Brothers and other labels,  It’s educational program produced a CD entitled Kid Pan Alley, featuring songs written by noted songwriters with grade school classes around Nashville.  This project won the NCO a Grammy nomination as well as a Gold Award from the Parent’s Choice Foundation and the National Parents Publications Association.

Tickets for the show are on sale now, $25 for General Admission. Call the NCO at 615-322-1226 ext 201 or go online at www.nco.org for more information.

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360 Agency Early in October, Joey Lee, former CEO at Buddy Lee Attractions , left that agency to form 360 Artist Agency, a full-service talent agency.  This ends a very long tenure for the namesake’s son at the helm of the famous Nashville agency. 

Miranda Lambert Mr. Lee took several of his clients with him to the the new agency, including Lee Ann Womack, Miranda Lambert and Heartland, but 360’s final roster has not been published.  In addition to these three artists, Lee was the responsible agent at Buddy Lee for Bo Bice, Mark Chesnutt, Jared Nieman, Rhett Akins, and Thomas Martinez.   Tony Conway remains as president of Buddy Lee Attractions.   You can check out his current  MySpace for more information.

Lee can be reached at 903 18th Ave. S., Nashville, Tennessee 37212, (615) 360-0911.  Email: jlee@360artistagency.com.


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