Copywrong?

Deep Blue Something involved in legal fight over money, "Breakfast at Tiffany's," and the rights to their own music

Before 1993, Louis Bickel Jr. had no interest in the music business outside of buying a few CDs and listening to his car radio. He was an upper-class kid from Highland Park whose father is a partner at a prestigious Dallas law firm, a young man with money in his father's deep pockets. After he graduated from Texas A&M University in 1990 with a political science degree, Bickel went to work for a local insurance company as a recruiter. Such was the life of a kid from the Park Cities who was born and bred into the workaday world.

Bickel did not become involved or infatuated with the music business until happy fate placed him in Deep Ellum one night during the summer of 1992. On that night, Bickel became enamored of a band called Leper Messiah, a group Bickel believed was so good that he became convinced they would hit it big some day--and, just maybe, take him along for the ride.

"I loved them," Bickel said just a few months ago. "They were great."
He went to hear the band, who would later become Deep Blue Something, a couple of times that summer, and became friendly with them. They told him they were trying to put out a CD and lacked the money to finance such a project. Bickel offered his help, promising the band whatever money they would need to get their record done. Over the course of the next few months, Bickel would see them perform in Dallas, Denton, and Austin, discussing with them just how much they would need to record their CD. Bickel was convinced he had found his winning lottery ticket.

In late 1992, Bickel paid "no more than $3,000," according to Deep Blue Something's lawyer, to send the band into Reeltime Studios to record the CD that would become 11th Song. Shortly after that, on January 7, 1993, Bickel and Deep Blue Something agreed to a contract that Bickel says gives him the rights to all the songs on that CD--including the one that would transform them from struggling local musicians into national stars. The deal also called for Bickel, who was doing business as Doberman Records, to receive a percentage of money made from "all [Deep Blue Something] songs past, present, and future," in the words of the contract.

Like any first release by a local band, the CD at first sold modestly--a few hundred copies, most of which were sold by the band at shows. But over the course of the next two years, the CD would sell in the thousands. It would spawn a big hit single on local radio; help land the band a big-time record deal with Interscope Records during the summer of 1995; get the band on VH1 and MTV several times a day every day and a shot on "The Tonight Show"; and make them one of the most successful bands ever to come from Dallas.

Louis Bickel, like the rest of America, watched from the sidelines as Deep Blue Something ascended the pop charts, landing a new recording of "Breakfast at Tiffany's" in the Top 10 and selling hundreds of thousands of copies of the record Home. The band had new management, a mammoth and powerful record label, and the success Bickel says he always knew Deep Blue Something would attain; he, on the other hand, had his insurance job, a condo on Skillman he bought in 1991, and a few thousand bucks he made from the sale of 11th Song.

But he still had his contract--that lottery ticket--and he was convinced he owned the rights and royalties to all the songs on 11th Song, including "Breakfast at Tiffany's," not to mention everything on Home. Bickel wanted what was coming to him, the money and maybe even the fame he thought he had been promised in January 1993, and he'd get it even if he had to take his old friends to court.

This is the oldest story in the music business: A struggling young band turns to someone for help when they need it most, then cuts that person loose when the band becomes successful. Then that person turns around and sues the successful band, claiming to have been left out when it came time to split the pile of money between them. At least, this is the familiar tale Bickel and his attorney are telling.

"This isn't an unfamiliar scenario," says Bickel's lawyer, Michael Byrd. "It's one where people who get helped out early and hit it big tend to forget the people who helped them early and forget the consequences."

Quite simply, Louis Bickel wants Deep Blue Something--and Deep Blue Something managers Paul Nugent and Mike Swinford, label Interscope Records, and distributor Atlantic Recording Corporation--to give him an accounting of how much money "Breakfast at Tiffany's" has made, and then to turn 5 percent of all those royalties over to him.

The band, Nugent, Swinford, Interscope, and Atlantic refuse to do that, of course, claiming Bickel has no legal right whatsoever to the song. In fact, they all allege Bickel's 1993 contract with Deep Blue Something is void because he never lived up to his side of the agreement. They allege that the money Bickel used to pay for the recording of 11th Song was nothing more than a loan, and that he has been more than compensated through sales of the CD, which, one source says, has grossed more than $40,000--only a few hundred dollars of which the band ever received, according to members of Deep Blue Something.

"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.

"I then tried to see them backstage, a room upstairs," Bickel says in his deposition, "and they wouldn't see me. I tried to see Todd."

Charles Davis contends this is not a copyright case. First of all, he says, the song existed long before Bickel met the band, and the version of "Breakfast at Tiffany's" on 11th Song is a completely different recording than the one on Home. He also points out that Bickel never bought the song from the band; rather, Davis stresses, Bickel merely loaned the band a few thousand dollars to record 11th Song.

Davis insists Bickel filed his lawsuit in federal court because there was no way the alleged agreement between Bickel and the band was going to stand up in state court. Davis refers to the demand for federal jurisdiction as nothing more than a "delaying action."

Davis says Deep Blue Something only filed its lawsuit in July 1995 because Bickel ignored, three times, the band's request for accounting records and royalty figures, which Davis started asking for in December 1994. According to Davis, the three band members received only $250 a piece for sales of 11th Song, whereas Bickel pocketed several thousand dollars--much more, Davis notes, than his original investment for the recording and manufacturing of the disc.

"Despite what Mr. Byrd says, our suit wasn't a preemptive strike at all," Davis says. "The band wasn't even in negotiation with Interscope at the time. It was because Bickel wouldn't respond to my demand letters to give us an accounting, and when he wouldn't do that a third time, we filed our suit. It wasn't a preemptive strike, and if he thinks so, Mr. Byrd is kidding himself.

"We got tired of his client not responding and refusing to give an accounting and then telling everybody that Deep Blue Something and everything they did was going to be his from now on: 'I own you guys.' Well, he doesn't own us."

Bickel's intentions surrounding Deep Blue Something were always clear: He saw, and perhaps still sees, the band as his meal ticket. The January 7, 1993, contract between Bickel and the band concludes with the statement: "It is our hope that Deep Blue Something will become a nationally recognized entity and the rights of Doberman Records will be preserved. However, let it be known that Doberman Records and Louis Bickel from this day forth openly desire for any company in the music business...to purchase Doberman Record's rights."

In his deposition, Bickel puts it more clearly: "I did it to make money."
Right now, the case is being delayed while U.S. Magistrate William Sanderson reviews the motions of Deep Blue Something, Nugent and Swinford, and Interscope and Atlantic to dismiss or delay Bickel's federal suit until the debate over the legality of the contract is settled. Both parties expect the case to reach trial sometime around September, after more depositions are taken and more discovery motions are filed.

Until then, all money made from new sales of 11th Song will go into a court fund, Bickel will go on selling insurance, and Deep Blue Something will go on selling their records by the thousands. Every single day.

SXSW showcase showdown
Out of the more than 100 local bands that applied this year for the annual South by Southwest music conference in Austin, 19 scored showcase performances for the conference, which takes place March 13 through March 17. They are: Cowboys and Indians, American Analog Set, Hagfish, Slobberbone, The Big Train, Bobgoblin, Pat Boyak and the Prowlers, Brave Combo, Brutal Juice, Caulk, Ronnie Dawson, Dooms U.K., Doosu, Ray Wylie Hubbard, Little Jack Melody and His Young Turks, Old 97's, Tripping Daisy, Vibrolux, and Greenella. Three of those bands--Tripping Daisy, Brutal Juice, and Vibrolux--already have major-label deals, but no matter; this year, SXSW has loaded its roster with a heap of ringers, including the likes of Joan Osborne, George Clinton, Iggy Pop, Throwing Muses, Billy Bragg, Randy Newman, Golden Smog, Liz Phair, Edwyn Collins, Geraldine Fibbers, and former Bangle Susanna Hoffs. What? The Eagles weren't available?

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