By Jeremy Hallock
By James Khubiar
By Observer Staff
By Kelly Dearmore
By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
"Mr. Bickel loaned [Deep Blue Something] some money and helped them to produce a CD," says Charles Davis, the band's attorney. "That CD is titled 11th Song, and Mr. Bickel came back a few months later and asked that they sign an agreement which purported to be a lot of things. But when you say, 'the agreement,' and when I say it, I wince because this alleged agreement that was allegedly entered into is absolutely unenforceable in the state of Texas...
"You cannot enforce those types of agreements because not only are they ambiguous and lend themselves to trouble and litigation, but slavery is not allowed in the United States anymore."
Herein lies the twist to this familiar tale: On August 25, 1995, Bickel filed a federal copyright suit against Deep Blue Something, Nugent, and Swinford (as well as Nugent and Swinford's Dallas label, Rainmaker Records), Interscope, and Atlantic in United States District Court in Dallas, claiming rights to "Breakfast at Tiffany's."
But a month earlier, on July 7 of last year, Deep Blue Something--bassist-singer Todd Pipes, guitarist-singer Toby Pipes, and drummer John Kirtland--filed suit in Denton County District Court alleging that their contract with Bickel was worthless. In documents filed in state and federal court, they claim Bickel never gave them an accounting of the money made from sales of 11th Song and refused to pay royalties. The band alleges the contract between Bickel and the band is "unenforceable on its face" because "it was produced by fraud and...materially breached by Bickel."
No one, not Louis Bickel nor the members of Deep Blue Something, disputes whether Todd Pipes wrote "Breakfast at Tiffany's." The song existed at least two years before Bickel ever met the band, and it was released on an early Leper Messiah cassette--though just when that tape was released is "going to be an issue," Davis says. Bickel even acknowledges Todd Pipes as the author of the "words and music" to "Breakfast at Tiffany's" on the application he submitted to the United States Copyright Office on July 24, 1995. The song, according to Bickel's application, was first published in July 1991.
Bickel lawyer Michael Byrd says Deep Blue Something filed its case in state court in Denton to get out of its financial obligations to Bickel; he refers to it as a "preemptive strike" in which a band "with a potentially profitable record" and a popular hit single was trying to take a "song that belonged to Lou."
Byrd insists Bickel never wanted to file a lawsuit in the first place, and that Bickel simply demanded that his rights to the song "Breakfast at Tiffany's"--and to the band, including anything involving negotiations with a major label--be recognized.
"[Bickel] had been hopeful that what he viewed as his rights could be acknowledged," Byrd says. "The alternative we were presented with was either acquiescing in the other side's view of what the legal view was, or bringing suit, and we were left with no choice. It was not a defensive move. It was a move to get what we believe is right."
Because copyright law is what it is--often a tenuous framework open to judicial interpretation--Bickel insists he is the sole owner of "Breakfast and Tiffany's" even though he had nothing to do with its conception or execution.
As Bickel says, quite simply, in his deposition: "'Breakfast at Tiffany's' is my song." He backs up his claim with his copyright application--which was accepted by the Copyright Office because the band had failed to copyright their own material, which is a common mistake among young musicians.
Michael Byrd, who says his client was "suckerpunched" by Deep Blue Something and betrayed by band members he thought were his friends, explains the issue of ownership this way: "If you paint a picture and then sell it to someone, you can't decide you want to hang it in your house for a while on the grounds you made the picture in the first place."
In a November 29, 1995, deposition, Bickel says he paid local manufacturer and distributor Crystal Clear Sound $2,066 for the initial fabrication of 11th Song. He also says about 12,000 copies of the disc have been pressed and that Crystal Clear Sound, which also distributed 11th Song nationally (and still does), has paid him $36,000, monies made from the sale of 11th Song over the course of two years. Bickel says that out of that money, he has pocketed between $12,000 to $13,000--"less the royalties I pay" the members of Deep Blue Something and other taxes.
Bickel--who, from all accounts, never promoted 11th Song--figures he ended up paying the band "about $1,700" in royalties. But he insists that after a show at Trees on May 13, 1995, "I offered them another $600, and they didn't take it." He asserts that Paul Nugent--Deep Blue Something's manager and co-owner in Rainmaker Records, which first released Home before the band signed to Interscope--wouldn't allow the band to accept the checks, and wouldn't allow Bickel to see the band from anywhere other than the audience. Nugent, who tells the Observer he didn't allow the band to take the money because Bickel would not also provide a financial accounting of money made from sales of 11th Song, did get Bickel and a couple of pals into the show for free.