I don’t know which were the more exhausting conversations I had that week, the ones with the lawyer or the ones with Lacey. They were equally difficult to understand, but sometimes you just have to go along with things and hope you figure them out later.
The lawyer’s name was Harold Feinbaum, and the first time I’d contacted him had been when Watt had given me his number back when BNC had first put a contract on the table. I’d met him at a swanky Boston office where the carpeting was plush and even the secretaries wore suits.
This time, he came to us. He met us at the house in the afternoon, in jeans and a polo shirt, carrying his briefcase in one hand and a six pack of bottled beer in the other, and I wondered if maybe Watt had been a good influence on him. I found myself feeling pleased that the living room was so cleaned up, though.
“Thank goodness you talked to me before you signed the thing in the first place,” he said as he plopped his file copy of the contract onto the brand new coffee table. On Feinbaum’s advice I’d pushed hard on a couple of points back when, though I was honestly unsure which things I ended up winning outright and which we had comprised on. Master recordings, exclusivity, publishing rights, I knew we’d negotiated on them… Feinbaum was in the big arm chair. Me and Carynne were on the loveseat next to him and Chris, Bart, and Courtney sat on the couch. Courtney was taking notes. Feinbaum was a little on the chubby side and his face had sort of bulldoggy jowls where his cheeks had sagged. “That’s the good news.”
I pretty much burst out with, “Tell it to me straight, doc. Am I going to live?”
Feinbaum chuckled and did a reverse Star Trek: “I’m a lawyer, not a doctor.”
“I know. But they’re throwing the word unrecoupable around and I’m trying to figure out if we can keep the lights on, you know what I’m saying?”
“I do, I do. You’re saying we should stay focused on your revenue-generating power and the ways this contract infringes or limits that.”
“Yes.” I’m pretty sure I understood what he said. “I mean, I’m not interested in suing them just to prove a point.”
“You’re wise. Carynne can answer the details on your operating income and expenses better than I can, but here’s what I know. You want to talk earning potential? Because Watt’s a mensch, you already kept all the publishing rights on ‘Candlelight,’ so first of all, every penny from radio play and incidental use is coming straight to you. That could dry up any time without warning, when stations finally quit playing the song, but for right now, it’s probably just enough to keep the lights on, as you put it.”
“Okay, that’s good.” The beers were twist-offs and I opened one. Pretty soon everyone had opened one except Court. Not that I would have said anything if she wanted one, but her hands were full.
“Next, you already of course keep anything the band makes performing live. They can’t touch you there, obviously.”
“Right.” Though I didn’t see us hitting the road again soon, especially with Ziggy on another continent.
“We lost on master recordings. They own them on 1989, but of course not the publishing rights. So that’s good because you’ve had high airplay, supposedly. So I’d be expecting BMI and ASCAP checks there, too. But I know, that’s all dwarfed by how much you might be making from album sales, which I’m getting to. You absolutely do have the right to the accounting review you mentioned, and it sounds to me like the fact they put up any resistance at all that makes it a 100% guarantee you should audit their finances. A forensic accountant isn’t going to come cheap, but if you find anything, there are a couple of ways it could pay off. One, you get the money they under-calculated. Two, you prove some kind of misconduct that gets them to dissolve the contract.”
Bart piped up. “Wait, how does dissolving the contract help us?”
“Because then the band can sign with another company. Which brings me to my final point, about exclusivity.”
“I know we talked about that a bunch,” I said. “But Mills made it sound like they own me.”
“As I recall, even the other company you had bidding–Wenco, wasn’t it?–didn’t want to budge on the exclusivity issue, but you at least got BNC to replace their standard exclusivity clause with the one I gave you.” He had a smug smile on his face, the lawyer that ate the canary. “They might squawk about it, but they really have no case. The way it’s written, you can perform, record, write, and be credited on any other gig you want, so long as you’re not using your stage names.”
Bart’s eyes lit up. “Yes! I knew that was a good idea!”
“Wait,” I said, trying not to get too excited yet. “But as individuals or as a band?”
“As individuals,” he said, looking at me. “BNC owns the recording rights to Moondog Three, and to Daron Moondog. Daron Marks, on the other hand, can do what he wants. So could Mergatroid Hershenbloom if you want to pick up another name, but something tells me Daron Marks will have better cachet.” He shrugged.
Courtney looked at her notes. “Okay, does that mean the band could also just change names?”
“Unfortunately, as a group it’s a little more complicated. You’d have to make significant changes of some kind besides just a name change or they’ll nail you. If the four of you started playing romanian folk music, or acid house techno maybe, and called yourselves something else, Starcat Quartet or something, they might still try to get you but chances are that would be a tough sell to a judge since it’s less obviously a stealth attempt to subvert the contract or to exploit company property. But it could still be frowned on. There have been bands who did that who were sued because they were dawdling from delivering an album. That’s supposedly why the exclusivity clause exists, so itinerant musicians don’t wander off and do other things.”
“But we’re not dawdling. We’d like to do another album,” Bart pointed out.
“I know.” Feinbaum took a swig from the bottle, then coughed a little before he went on. “But the precedent is still there. Let me explain something else, too. No one wants to actually end up in court. The only people who win in court cases are the people like me who get paid to argue them. Everyone else loses, pretty much. They’ve got a bunch of lawyers like me whose job it is isn’t to sue people, it’s to make the risk assessment of whether it’s worth it to potentially get sued, or to sue and lose. If they feel like the law’s on their side, they’re more aggressive. If they feel like maybe you have some points that are really strong or that they don’t want to chance being decided in your favor, then they’re more likely to just ignore you, or to settle somehow.”
“Okay, so, if they tried to come after us for taking other recording gigs…”
“Which many companies would,” he pointed out.
“…with the wording of this clause, that’s much less likely.”
“Exactly. And I feel confident we’d win. They know that. Which is why I predict they’re going to let it go rather than take the risk.”
“Okay, wow. Well, that’s the best news I’ve had in a while.” I still had the image of Mills’s face looking smug stuck in my mind, though. I wondered what he would look like when he found out he was wrong, or if he’d even care. Maybe it was all about winning the argument in the moment.
“Now, you’d think the big prize at the end of the day would be for them to roll over, say they were sorry and wrong, and to make amends they cough up the dough for another record and then actually sell and promote it properly. But justice is a pipe dream, guys. I don’t see any way for that to happen. Would you actually trust them with another record? Would you take that chance even if they handed you more money, after this experience? They could sink your careers. In fact, they think you’re sunk already. I think we’re much better off doing the audit and then trying to get them to let you walk away with no penalty.”
“Would they still own the sales on Prone and 1989?” I asked.
“They would. But at least you’d be free to start again somewhere else. Like Wenco, maybe?”
“Artie’s a nice guy, but I don’t recall their offer being any better.”
“Sometimes it’s not about the offer.” Feinbaum shrugged. “And sometimes it’s about leverage. Anyway, that’s my take. Another lawyer or a judge might see it differently, of course, but that’s my advice.”
“Do we have to hire a forensic accountant?” I asked.
“Well, ideally you need someone who knows the music industry or it would be too easy to hide things from him.”
“What about Watt?” Bart asked. “He’d know what to look for.”
“Not a bad idea,” Feinbaum said. “But Watt, for all his genius, isn’t always the best with the tiny details like numbers.”
“What about Watt and Colin together?” I suggested. “Colin’s a CPA.”
Bart made a skeptical noise. “My father has forensic accountants working for him.”
Feinbaum put his beer down. “Sounds like you have options. Let me know as soon as you’re ready for it to go and I’ll serve the letter saying you want to look at their books. And we’ll go from there.”
Okay here’s a confession, I used Courtney’s notes to reconstruct the conversation above. There were a lot more twists and confusions in the real thing, I think, but since it was my head that was twisted and confused it’s hard to remember what it is I couldn’t figure out. Feinbaum explained it all pretty good by the end, though, and hopefully I’ve done the same.
He hung out for a little bit after the official meeting, and Watt came over as planned and hung out, and there was a barbecue. Autumn was pretty much here which mean sitting around the driveway with the grill going was a good way to spend an evening. Throw some kielbasa on there and I’m happy.
Bart and I gravitated together. Even with all the changes we’d been through, whenever we were together it was like we hadn’t been apart. For me, that was the definition of a true friend. And we talked about everything. Serious things. Not-serious things. Band stuff. Other stuff. His parents were on a cruise to Greece and he and Michelle were thinking about going to their house down the Cape for a week or so. They had invited whoever wanted to come for the weekend, but no one had made up their minds.
I said I’d go. Next thing you know, everyone was going.
Bart and I ended up in my room, where I played him the Sarah Rogue CD and wondered why she hadn’t called me. Then I realized she probably didn’t have my number in Massachusetts and that I hadn’t checked email in days.
We talked about the industry. Bart wasn’t fazed so much by what was happening to us as he was by the unwillingness of the industry as a whole to care what people actually wanted to listen to. “The whole point is that something new and different is always coming along,” he said. We were lying on my bed with our heads between the speakers, because that’s how my room was set up. The best place to hear it was like that. “So it’s weird. They say they’re always looking for the new hot thing, but really they aren’t. The companies and stores and systems are built to keep doing the same thing again and again, and they can’t accommodate big changes.”
“I mean, look at how huge acid house is in the UK. It’d be just as huge here, or huger, if there were radio stations that could play it without it violating their precious formats and if there were stores that could sell it because they thought people would like it, not because they had a bin marked for it.”
“What’s different in the UK?”
“I think it’s just a smaller country first of all, so the distribution networks are less vast and you have more smaller stores and not so many chains. And they aren’t as rigid about format or genre.”
“But all it takes sometimes is one hit to break through, right?”
“Sometimes. Or sometimes that’s just seen as one weird outlier. Look at what’s happening with Technotronic right now.”
“Which band is that?”
“That’s ‘Pump Up the Jam.’ That’s as close to a house crossover hit as we’ve seen so far. But there’s so much going on in the dance realm.”
“But record companies still act like no one wants to buy it but deejays and no one would want to listen to it on the radio or at home, only in clubs.”
“Yeah. Weird, isn’t it?”
“When you put it like that, yeah.”
Someone knocked on the door and the two of us both yelled “Come in!” at the same time.
Michelle looked in. “I figured you were in here. I’m going to head home. If you want to hang out more you can, but…” She looked behind her, then back at us.
Bart sat up. “Nah, I’ll come home with you. See you on the Cape, Daron.”
Out they went. That left me alone in the room staring at Ziggy’s travel bag, which was still sitting there.
I tuned the radio to WZBC, the Boston College radio station that played weird music all night, and lay there looking at the ceiling for a while. Then I remembered I meant to check my email. I went down to the basement where the Mac and everything was still set up, just like I’d left it.
There was an email from Sarah, all right, saying she’d signed with BNC, a major multi-year, multi-album deal, but she really wanted to talk to me on the phone and could I please call her? The email was almost a week old. I shot her back one quickly apologizing for being out of touch and giving her the Allston number, but I was about to leave for the Cape. Whatever. I’d catch up with her eventually.
I went back upstairs to pack stuff to bring to the Cape. I eventually got caught up in trying to decide what to do with Ziggy’s stuff, though. Carynne had a key to his apartment so I could go and leave it all there if I wanted to. But that felt a little weird. I didn’t know if he’d appreciate feeling like I’d been there while he was gone. On the other hand, if I held onto it, he’d eventually have to come get it, and I felt like I was holding the stuff hostage. Or maybe he would forget about it entirely, and I’d feel stupid waiting for him to remember. Or I’d remind him and then it would really come off like I was keeping the stuff hostage to get him to come talk to me…?
The phone rang and I jumped, forgetting I’d turned the ringer on in my room again and wondering who was calling so late. Maybe somebody realized they forgot their wallet here or something.
I picked it up. It was Jonathan.
“Hey, stranger,” he said. “You busy?”
I lay down on the bed and turned down the radio. “Oh my god, we had the meeting with the lawyer today and it’s mostly good news but wow I really hate this side of the business.”
“No kidding. Fill me in.”
“No, wait, tell me first how you’ve been doing.” It was good to hear his voice, I realized. Very calming. “Because once I start recapping the whole lawyer thing, you know, it’s a rabbit hole.”
“Things are going great. I’m really pleased with how it’s shaping up. I talked to my parents, though. They’re taking my cat. I found a place here.”
So much for calming. But I kept it light, even if I was thinking about his asking me to move in. “Oh yeah?”
“Yeah. Surprisingly affordable and really nice. Not as nice as Remo’s but you know, not much is. Speaking of which, he called here trying to reach you. I told him you were back East for a bit and he said he’d try you there when he next had a chance.”
“I’ve been wondering. He and Sarah both owe me calls.”
“She called here, too. She’s out of town for the next week or so, though. Doing the same thing I am.”
“Flying home, packing up, and then driving it all back here.”
“Wow, really? You’re going to drive cross country?”
“Well, actually, I don’t think I have time to do that, so I’m flying home, packing up, and then movers are going to drive it all while I fly back. I’d have to take a whole week off work and right now I can’t leave for that long.”
“When are you doing it?”
“I’m flying tomorrow, packing over the weekend, and then flying back Monday morning.”
“Yeah quick turn around. My mother’s already collecting boxes from all the grocery stores. I should probably think about selling off a lot of the books. I’ll probably end up putting them in her basement, though. I’ll be packing like a fiend to get it all done in time to fly back on Monday. How about you? Not that I’m trying to pressure you to hurry back here or anything.”
“Miss me?” I said it like a joke, like a toss-off, without thinking about it.
“Terribly,” he said, and it didn’t sound like a joke. He sounded nervous. “It’s… exactly like that Police song, about the bed being too big without you.”
“Oh.” I had a pile of immediate thoughts which all boiled down to “oh no.”
But Jonathan had gotten good at reading my mind. “I know. It’s not like you wouldn’t be on tour a lot. Tour widow I could handle, I think. It’s not knowing when I’m seeing you again that makes it rough.”
And I was thinking, what happened to ‘let’s see each other a couple times a year?’ I couldn’t ask that, though, it was obvious things had changed. We had changed. I had a flash of hot and cold, like even my skin couldn’t decide what to feel.
“I know,” I said, because I had to say something or he’d start trying to interpret my long silence as something else. “There’s a lot uncertain right now. I’m sorry about that.”
“So how’s everybody? How’s your sister?”
And just like that, he had moved us on to normal stuff. I rolled with it. “Carynne and Courtney have a plan that on Monday we’re going to buy me some actual furniture, now while we have the income, because they just don’t think I should live out of milk crates anymore. Bunch of us are going to Bart’s house on the Cape for the weekend first, though. Next week, I’ve got a couple more things to do and then I can head back, I guess. Carynne’s in charge.”
“You could wait until I get moved in, and then–”
“J. I really have to think about it.”
He was silent a moment.
“I don’t mean it like that,” I said. “If I get another soundtrack gig, I’m going to want to stick at Remo’s. I can work there in the studio. I won’t have to rent something.”
“You could try going up there during working hours and coming back into town at night,” Jonathan pointed out. “I know, I’m usually the one who writes at all hours, but this working regular office hours or some semblance anyway is really working for me.”
“You have a point,” I conceded. “Let me see what’s going to happen, I guess.” I’m not even sure what I was asking there, only that it sounded like I wasn’t really committing myself to anything, still.
He didn’t press. “Okay.”
(OK, this song was a Top 40 hit in 1989, and I only just realized now how little sense this video makes… But you know, that was the 80s, good and bad. As for the whole thing about how they lip synched instead of singing… um… there’s singing in this song? Not so’s I noticed… And what’s with the photo of Charles and Di? And if she wants him to call so much why didn’t she get HIS number? I don’t understand anything. -d.)