Copyright, Intellectual Property, Music

Supersonic Settlements

Even when legal defenses exist, sometimes a client should accept the validity of the other side’s position.

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Oasis (press photo)

This column will have it all. Rock and roll, youth, money, lawsuits, and fast living. As well as some lessons on the value of settlements. The inspiration? The amazing documentary film Oasis: Supersonic, directed by Mat Whitecross, which I saw on a transcontinental flight recently. Given my personal history with Oasis, who exploded on the scene right when I was navigating high school, I was not surprised that the documentary hit me emotionally. Because I realize now, as I sit on the cusp of turning 40, how emotionally charged and vibrant our teenage years truly are, when everything feels new, raw, and electric. We carry that charge through our adult years, and nothing is as powerful as music in terms of reviving the memories of how we felt, how we yearned, and how we imagined life would be. It seems we spend a lot of energy and money in our later years hoping to experience moments that let us feel as deeply and honestly as the emotions we experienced during our teenage years.

Just watching the documentary in my narrow airplane seat transported me back to the Roseland Ballroom in midtown Manhattan, where Oasis played in front of a rabid audience in October 1995. Sights and sounds long forgotten came rushing back, as I recalled the thrill of watching a vibrant new band at the height of its powers, delivering songs from England that seemed perfectly calibrated for my Brooklyn born-and-raised teenage soul. I remembered bellowing crowd members unfurling a Union Jack flag, and how the concert seemed to be both epic and way too short at the same time. It was all I could do to not start singing on the plane, which given my voice would likely have required that I be restrained and gagged by the flight crew.

The story of Oasis is a fascinating one. Like the proverbial flaming comet, the band emerged out of nowhere in the mid-1990’s to become one of the biggest bands in the world. For my generation, they were the Beatles, with the roles of John and Paul played by the mercurial, but undoubtedly brilliant, Gallagher brothers. The lead singer was Liam, who seemed determined to live out every vice afforded by rock-and-roll celebrity, and who was alternately vilified and beloved for his prodigious ego. His foil was his older brother Noel, who played guitar, sang, and wrote songs that made people think, and feel — songs that YouTube commentators rightly refer to as “songs that will accompany the entire life.” The syntax of that comment might not be perfect, but the sentiment is. (To prove the point about the timeless beauty and resonance of Oasis’ music, just watch how the young crowd at the recent Manchester benefit concert for the terror victims sings along to an Oasis hit from twenty years ago.)

For all his genius, Noel would unabashedly acknowledge that he was not averse to looking at earlier songs for inspiration. While that honesty helped fuel criticism of the band as derivative and unoriginal from some quarters, it also led in at least one instance to a copyright infringement lawsuit against Oasis. One of the band’s early hits was a song called “Shakermaker” — whose melody was admittedly lifted by Noel from a famous former Coca-Cola ad jingle called “I’d Like to Teach the World to Sing,” by an Australian band called The New Seekers. Even the title of the Oasis song was taken from a popular 1970s toy called the Shaker Maker. While sampling is rampant in the music industry, every so often the original musician takes offense at seeing their copyrights disrespected, and files a lawsuit. Which is exactly what the New Seekers did, suing Oasis for copyright infringement.

Even though Oasis was known for their devil-may-care attitude, when it came to the lawsuit they did the smart thing and settled, agreeing to pay the New Seekers half a million Australian dollars. After the settlement, Noel would get his revenge and money’s worth, by incorporating the original New Seekers lyrics into performances of “Shakermaker” and even going so far as to declare his affinity for Pepsi when referencing the lawsuit. While Noel himself has publicly stated that he has no interest in pursuing lawsuits against those who look to Oasis’ songs as inspiration, when he was sitting at defendant’s table, he wisely chose to recognize that other copyright owners might not feel the same way (even though the band had the resources to fight the case, and could have relied upon the full panoply of defenses — likely aided by the best copyright defense counsel money could retain — available to an artist accused of infringement).

In Oasis’s case, settling with the New Seekers was in my view the right call, and sent a message that the band respected those who had come before, and were willing to acknowledge when they may have crossed a line in terms of respecting the copyrights of others. In a way, Oasis’s recognition of the importance of copyright law also sent a message to those who considering copying Oasis’s songs — that Oasis valued copyrights, and might police their own rights against infringers, Noel’s public statements to the contrary notwithstanding. When you take into account that the settlement money not only helped the band avoid spending even more in legal fees — while taking away the risk of a much larger judgment, and even offering some marketing value — the decision to settle was a no-brainer for Oasis.

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Ultimately, the Shakermaker settlement reminds us that even though there may be legal defenses available to a client, sometimes it is in the client’s best interest to recognize the validity of the other side’s position — particularly in intellectual property disputes where temperatures can run high, and accusations of stealing another artist’s work carry emotional weight. As an IP lawyer, I know that there are times where we have to stand and fight on behalf of clients, and help them bask in the morning glory of victory. But sometimes our job is to let the client see the benefits of settling, so they don’t have to look back in anger at a situation that some might say could have been prevented from escalating into a supersonic waste of resources.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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