“You ain’t nothing but a hound dog
Been snoopin’ round my door
You ain’t nothing but a hound dog
Been snoopin’ round my door
You can wag your tail
But I ain’t gonna feed you no more”
“Hound Dog” was first recorded by Willie Mae “Big Mama” Thornton August 13, 1952. Jerry Leiber and Mike Stoller (“Jailhouse Rock”, “There Goes My Baby”, “Love Potion No. 9”) are credited with writing this twelve-bar blues although many argue that Thornton’s additions to the song, written expressly for her, made it the hit it was.
Thornton born in 1926 in Montgomery, AL believed she never received the credit she should have for the song. She received only one check for $500 and never saw another penny from the song that spent seven weeks as number one on the 1953 Billboard R&B chart. Rolling Stone quoted her as having said, “Didn’t get no money from them at all. Everybody livin’ in a house but me. I’m just livin.” Big Mamma died penniless, her lifeless body found in a L.A. rooming house in 1984.
Elvis Presley covered “Hound Dog” in 1956 and sold over 4 million copies in the United States on its first release. It was his best-selling single and starting in July1956, spent a record eleven weeks at #1. It stayed in the #1 spot until it was replaced by “Love Me Tender,” also recorded by Elvis.
In March 2005, Q Magazine placed Presley’s version at number 55 in its list of the Q Magazine’s 100 Greatest Guitar Tracks. Rolling Stone magazine ranked it #19 on their list of the “500 Greatest Songs of All Time”—the highest ranked of Presley’s eleven entries.
Was “Big Mama” legally entitled to share in some of the rewards of Hound Dog’s success? We may never know because there is no record of copyright infringement ever having been formally alleged in the matter.
By now you may be thinking “c’mon, that was over 50 years ago, things have changed.” Yes, things have changed. Even when infringement cases are pursued to termination by judicial decision, the results are often not what either party anticipated. In 1971 Bright Tunes Music filed suit against the “Beatles” George Harrison in one of the best known music copyright infringement cases. Five years later in 1976, the trial judge found Harrison liable, but it wasn’t until 1981 that the damages were paid and the judgment dismissed. Bright Tunes Music (BTM) was awarded $1,599,987 for infringement of The Chiffons’ hit, “He’s So Fine” by Harrison’s “My Sweet Lord” The original award included 70% of the royalties for the offending single and 50% of the royalties for the entire album!
The BTM case was over 30 years ago and indeed things have changed. Better informed artists, writers, and professional management entities may be inclined to litigate copyright infringement as BTM did, but the costs of doing so have soared to the point of being prohibitive! Although not a music case, the 2008 Bratz doll copyright infringement case reveals the potential for astronomical legal fees. A 100 million dollar damage award to Mattel from MGA Entertainment racked up over 90 million dollars in legal fees (63 million for MGA and 30 million for Mattel) and threatened both company’s continued operations.
Pursuing intellectual property cases to termination by trial can easily take five or more years to complete. And after completion, the plaintiff must still pursue collection of any amounts awarded.
The vast majority of copyright infringement suits do not go to trial, instead a settlement is usually reached between the parties. Settlements involving monetary compensation and an agreement to cease the infringing actions and/or a share of future revenues are common. Yet even negotiated settlements can literally take years to conclude.
Mediation is an alternative to this slow, cumbersome, and enormously expensive process:
• Mediation is confidential and eliminates adverse publicity. Though there are a few exceptions, nothing said or noted during mediation can be used against either party later in court. By contrast, litigation creates a public record.
• Mediation is much less expensive then litigation. Protracted litigation involves tremendous costs in risk, stress, attorney, and discovery fees. Legal or other representation is optional (not required) in mediation if the parties so desire.
• Mediation is less time consuming then litigation or negotiated settlement agreements. Many mediated disputes reach agreement in one or two meetings.
• Mediation is low risk and does not preclude a person’s “day in court” if s/he desires to pursue litigation after mediation. In mediation, parties retain total control over their agreement. And unlike binding arbitration, the parties do not lose any rights that may be provided under contract law or other law. There is no determination of liability in the process. Mediation avoids the uncertainty of a court-determined outcome and the unpleasant consequences of a judgment being issued against one of the parties while preserving the right to pursue the case through the courts if necessary.
• Mediation is informal. Other than a few “ground rules” designed to help everyone be heard, the parties and mediator can be as informal as they choose. Litigation polarizes the parties and cross examination is focused on pointing out weaknesses rather than initiating dialogue.
• When ongoing relationships are important, as for example, in the case of a dispute among artists or between licensees and licensors who wish to continue a business relationship, mediation provides an opportunity to resolve a dispute in a non-adversarial way so that important relationships are preserved and future communications improved.
• Mediation can be fast. Because timing is in the control of the parties, parties can reach and implement an agreement at any time.
• Mediation can be slow. Sometimes people need time to think things over and digest ideas. As long as the parties are moving forward, mediations can be scheduled over several sessions, thus enabling all parties to sort out options, consult with whomever they would like, and consider solutions.
• Mediation is flexible and can be used before, during, or after a case has been filed in court. The mediation process encourages parties to address root causes of conflict and to address those causes through every means conceivable. The parties may also consider options or strategies that would not be available to a court. Mediation enables parties to consider issues beyond money.
• Mediation is Successful! Over 86% of mediated cases settle! An independent national survey showed 96% of all respondents and 91% of all charging parties who used mediation would use it again.
A 2008 study involving 2,054 cases as reported in the Journal of Empirical Legal Studies found that when cases were adjudicated, plaintiffs committed decision error, receiving an award less than or equal to the last offer made by the defendant, in 61.2 percent of cases. Defendants committed decision error in 24.3 percent of cases.
Artists, songwriters, labels, and management can save substantial amounts of money and time, avoid adverse publicity, and mitigate enormous amounts of both personal and business stress by adopting mediation as their preferred method of dispute resolution. In the event a mediated agreement cannot be reached, all parties retain their right to pursue a court decision. Since evidence of conduct or statements made in the course of mediation is legally inadmissible, the parties literally have everything to gain and nothing to lose.
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