Wednesday, September 8, 2021
Writing as I do from Oklahoma, home state to the Bob Dylan Archive, Levy v. Zimmerman caught my eye. What's that you say? How can there be a Bob Dylan archive in Tulsa, Oklahoma? Why, it makes perfect sense if you think about it. It's right next to the Woody Guthrie Center (right). You should come and visit! And if you're hungry after that, you can come to my home city, OKC, and dine at Nonesuch, America's best new restaurant, according to Bon Appetite! Just sayin'.
Anyway, back in the early 70s, Bob Dylan collaborated with Jacques Levy to write ten songs, seven of which, including "Hurricane," were included in Dylan's 1975 album Desire (my second favorite Dylan album after Blood on the Tracks). I'm confused as to why Bob Dylan, America's great minstrel, needs help writing songs, but such are the uncontested facts. Levy was entitled to royalties on the songs, and he received $1 million. Levy died in 2004, but his estate and his publishing company seek an additional $1.75 million. Dylan sold his catalog of 600 songs to Universal Music Group (Universal) for $300 million, and plaintiffs allege that $1.75 million is their fair share of that sale.
As in the case that was the subject of yesterday's post, we are dealing here with a creator who contracts away his intellectual property rights in exchange for royalties. The court found that Dylan was the copyright holder and that Levy had no claim for breach of contract arising under the catalog sale to Universal.
This ruling was largely based on the contracts designation of Levy as an "employee" hired to help with composition and entitled only to limited royalties. Plaintiffs attempted to counterpunch, arguing that limiting the contract to that characterization elevated form over substance. They produced detailed expert testimony from Bob Kohn, who characterized the relationship between Dylan and Levy as giving rise to "joint works" and a shared "undivided interest" in the songs.
Mr. Kohn was fighting above his weight class. Justice Barry Ostrager of New York's Supreme Court, New York County cut him to ribbons:
In sum, the "expert" affidavit offered by Bob Kohn purporting to interpret the 1975 Agreement is inadmissible to offer an opinion as to the legal rights and obligations of the parties under the unambiguous contract . . . . Kohn's opinion is, in any event, unpersuasive as it distorts the plain language in the Agreement. Defendants' limited citation in their moving papers to Kohn's treatise does not change that result, as the Court is not relying on any extrinsic evidence to interpret the Agreement.
As Mr. Levy might have put it, Justice Ostrager
could take a man out with just one punch
But he never did like to talk about it all that much
"It’s my work", he’d say, "and I do it for pay
And when it’s over I’d just as soon go on my way"
He ruled based on the unambiguous meaning of the agreement:
[T]he Agreement unambiguously limits plaintiffs' compensation rights to 35% of monies received by Dylan for licensing rights granted to third-parties for the performance and use of the Compositions but not for any portion of the proceeds from Dylan's sale of his complete copyrights related to the Compositions that were explicitly vested in him alone pursuant to the express terms of the 1975 Agreement.
Justice Ostrager also dismissed Plaintiffs' claims against Universal as third-party beneficiaries of the catalog sale. Plaintiffs could make no claim to the status of third-party beneficiaries to that sale. He likewise dismissed their tortious interference claim. Absent a breach of contract, there can be no such claim.
In a case such as this, it seems inevitable that one of the parties would lament:
How can the life of such a man
Be in the palm of some fool’s hand?
To see him obviously framed
Couldn’t help but make me feel ashamed
To live in a land
Where justice is a game