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Panorama 2006 Trinidad and Tobago

Date: 03.14.06

Master Mischief Maker
or Major Protector of Rights?
Murky Waters as COTT Goes On Record about Rights to Bradley's Steelband Music Arrangements

 

 

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New York -  When Steel Talks followed up on an article in the Trinidad and Tobago media entitled 'Despers versus Bradley family' with Allison Demas, executive officer of the Copyright Organization of Trinidad and Tobago (COTT).  The article is based on the project of scoring arrangements being embarked upon by Desperadoes Steel Orchestra, with whom the late master arranger Clive Bradley had a long-time relationship going back almost forty years.  He first arranged for the legendary steel orchestra in 1968.

Desperadoes is planning to score the arrangements of Bradley, who they paid for his works on a services-rendered basis.  Bradley himself is on record with many people over the years, including When Steel Talks, that he had nothing to do with an arrangement, and no further rights or claims on his works, once he was compensated by the bands and individuals who solicited his services.  In fact, when approached by other foreign individuals to score the very same music that he had completed and been paid for by bands, Bradley himself referred them to the respective bands saying that they owned the arrangements, not him.

Enter the assertions of Allison Demas in a Joan Rampersad interview, regarding Desperadoes planned scoring of Bradley's works which they paid for.  Demas states that "for Despers to carry out their project they would need permission from Bradley’s heirs and the various songwriters."  Additionally, regarding Desperadoes' ownership through payment to Bradley for the arrangements, Demas also said that "it was not just a matter of payment. There must be a written agreement where the arranger must transfer rights to payment for dollars.”

Demas says that both 'rights from derivative works and intellectual property rights' are at issue.  Points of interest in her explanation are:

  • Rights from derivative works, if the steelband arrangements are deemed creative enough, can be claimed by the steelband arrangers
     

  • These said rights from derivative works, are however subject to authorization from and rights of, the original composers of the music
     

  • This factor is being upheld as potential legal grounds by COTT in Trinidad and Tobago, and according to Executive Officer Demas, also the Performing Right Society (PRS) in the United Kingdom
     

  • She says that the situation in the United States could be argued differently, that arrangers are contracted on a 'For Hire' premise, indicating there need be no transfer of arrangers' rights to the bands in the case of the USA.  COTT admits that this would not and could not apply in the USA
     

  • Rights from derivative works depend on how much the original composition has been changed, or an alternate musical creation produced from the original performances
     

  • Demas says that not all panorama arrangements qualify as derivative works
     

  • She asserts in Trinidad and Tobago 'the whole panorama, the whole steelband industry operates on a very casual and informal basis' and that arrangers have never put into practice this 'transfer of rights for payment,' much less the more formal paperwork in the initial step of intellectual property rights
     

  • Only if an arranger is an 'employee' of the said orchestra as opposed to independent contractor, can the rights of any arrangement deemed a 'derivative work' automatically belong to the band, thereby pre-empting the need for the arranger to 'transfer rights of arrangement for payment in dollars'
     

  • If the above is not the case, then a clear transfer or assignment of arranger rights to the band, in writing, is necessary before any attempt to scoring of the music can be done

So - if Demas' line of reasoning is legal, critical question:  who, then, is really QUALIFIED to make the type of call - as to if a steelband arrangement is a 'derivative work' for said rights to be those of the arrangers, and authorization/rights sought from the original music composers, or those who own those rights? 

Demas' original answer to this question in the context of Desperadoes, was Bradley's family or estate.  How possible?  Is the latter to hire someone to evaluate the late master's works?  Will it be people like some individual panorama judges?  Are they perhaps in line to be viewed as the most qualified people and be among the first logical choices to make such a decision relative to derivative rights?  In the worst case scenario, decisions can even be left up to the courts, according to COTT's Executive Officer.

Reporter Joan Rampersad writes that Bradley's former wife "is poised to retain a private attorney to protect the property of her children...heirs of the arranger."  If this is the case, what would happen in the choice of this 'qualified' person or persons to decide on the extent of exactly WHAT are true 'derivative works'?  What are the criteria?  Who will decide if the individual(s)/musician(s) called to the task, are thoroughly familiar (or not) with the indigenous music of Trinidad and Tobago, and the nuances/creative process involved?  How is this decision to be made?  Will it be pleasing to all parties involved/affected, and in this regard, would the ultimate choice(s) be truly competent?  MURKY waters.

And - there are also other people to consider if 'everyone' is to fairly have a stake or consideration in this projected bonanza - Bradley's other children, his common-law-wife of some years, etc.  Are these people all going to get involved in a legal wrangle?

There is not only panorama music involved.  Bradley has arranged many popular songs over the years for Desperadoes including Toto's Africa, Thelma Houston's Don't Leave Me This Way, and John Legend's Ordinary People to name just three.  So have other arrangers also done for other steel orchestras.  Should bands wish to score these, are the original composers or those owning the copyrights, going to be contacted for authorization, and someone appointed to determine which are 'derivative works' so rights can be paid to these people?  MURKY waters.

It is interesting to consider if Desperadoes had completed scoring Bradley's arrangements during his lifetime, that the probability of these 'conflicts' may not have arisen.  In fact, it is known that the colorful arranger consistently squashed various attempts and approaches by people not connected with the bands he worked for, to involve/purchase his own skills at superstitiously scoring music he completed and had been remunerated for by said bands.

But with these COTT statements now uttered, and as a matter of record,  - whether the ultimate resolution is amicable with a handshake or otherwise, the panorama arranging landscape in Trinidad and Tobago may never be the same.  Even if this issue does not become legal precedent, it has the unfortunate potential of becoming yet another obstacle or source of frustration that orchestras may now find themselves facing when contracting the services of arrangers - beginning with the immediate future.  Instead of merely wanting payment for their services - are arrangers now going to request additional payment for what Allison Demas calls a 'transfer of rights' of their arrangement to the steel orchestra, if their task turns out to be derivative work?  Who is going to set the dollar value for arrangers' rights, if and when they have been deemed to have value as derivative works?  Is there a sliding scale depending on the skill-level of 'creativity'?  And in case those bands ever wish to score their music - are they [bands] (or some other individual, decided by who???) going to discuss and agree if their 'purchased' arrangement constitutes a derivative work, with intellectual property rights due to the composer, and authorization subsequently sought?   MURKY waters.

Should/could bands demand a waiver up front (and in writing!) from arrangers' to their potential rights should their work be deemed 'derivative', in an effort to stave of claims from relatives/heirs/estates?  MURKY waters.  Maybe steel orchestras will begin considering what they bring to the table, and tell arrangers that without that waiver, they will not be hired.  After all, the band's performance and portrayal of that arrangement showcases the skills of the steel orchestra, too.  It is a symbiotic relationship.  They both work hand-in-hand to achieve a desired result and fame.  A Bradley arrangement executed by Desperadoes steel orchestra, could have a different result, appeal and 'bankability,' if executed by XYZ steel orchestra...

The door could even be open for disgruntled arrangers who somehow end up working without waivers or transfer of arrangers' rights in place, for said arrangers to now sell those rights to any interested parties.  Bands could subsequently find themselves legally not being able to play those arrangements they popularized through their signature flair and mesmerizing performances, should new owners of those arrangers' rights refuse permission to perform those particular arrangements, or demand payment if performed. 

Think this is a scare tactic?  It has happened before.  There is precedence.  The following is just one such occurrence.  Check the history of John Fogerty and Creedence Clearwater Revival.  Fogerty did not perform any of his hits he wrote for CCR when he went solo, because his label Fantasy Records claimed they owned all the copyrights to all his work with CCR.  If that was not enough, Fantasy Records 'even sued Fogerty for copyright infringement with the novel claim that he sounded too much like himself.'  This 'novel claim' was on his subsequent compositions/performances long after the 1972 disbanding of CCR...   This legal wrangling lasted more than thirty years, only being resolved in 2005.  This kind of time-frame leaves plenty of maneuvering room for heirs, and heirs of heirs.  MURKY waters.

Imagine Desperadoes not being able to perform "Rebecca."  Imagine a scenario of not only being forced to stop performing Bradley arrangements, because perhaps ownership ends up in foreign or hostile hands, but then also being sued for 'copyright infringement' because the claim is they sound 'to Bradleyesque' or like themselves, however you want to put it, with music not even arranged by Bradley!  If all this sounds outlandish or ridiculous, it could reach this far, depending on which parties are involved, and which legal minds are at work.  MURKY waters.

To circumvent all this - will bands now start composing their own music in-house, to avoid this unnecessary can of worms? 

Does the family/estate of the late Aldwyn Roberts (Grandmaster Lord Kitchener) now look at any band who may have already scored, or considers scoring arrangements, of Kitchener's rich bounty of 'pan songs' regarding authorization for reproductions/derivative rights?"  What about Austin Lyons (Superblue formerly Blue Boy)?   MURKY waters.

By the way - could this arranger's rights issue be retroactive?  In Desperadoes' case it certainly seems headed that way.  Does every arranger now seek to find out if they can be additionally compensated via arrangers' rights, in the event of the scoring of their arrangements completed in previous years?  Re-adjusting the arrangers' relationship with the bands for future interactions may be one way to move forward, and may not be a bad thing.  But to implement retroactive rules could be dangerous.

Also of note - composers (or performers, in the case where the composer and the performer is one and the same) actually shop around their music as they vie for their work to be selected by the steel orchestras and arrangers for the annual panorama season.  They race to provide advance copies, and are generally pleased when their music is chosen especially by the major steel orchestras.  Question:  based on this can of worms and these MURKY waters, do these composers/performers now reserve the right to request derivative rights, should the band choose to score their eventual arrangement?  What effect would this have on the sometimes perceived 'lack of good pan songs?'

Steelband is the culture of Trinidad and Tobago, and it is customary that while the pan men and pan women in the country continue to nurture, love, struggle for, and excel on the instrument in their native land; with the exception of a few - the majority of these people do not earn a living, or benefit substantially from their talents.  And there are many of them who would give anything for the opportunity to pursue as their bread and butter, their passion which sometimes only comes to life for them during panorama.  But business-savvy minds and others not from Trinidad and Tobago, but from other countries around the world, have understood how to market the art form and related ventures, and turn it into lucrative businesses for themselves.

This can of worms opened, and potential litigation nightmare and lawyers' dream cropping up regarding scoring of music by local bands, is poised to/and can become just such another opportunity.  With the possibility of such issues being tied up in courts for years, the only people making any money eventually could be the legal minds happily wading through it all - especially if that legal expertise is sought outside of Trinidad and Tobago. 

When Steel Talks still has additional questions for the consideration of COTT: it is an open secret for years that at the minimum, non-citizens of Trinidad and Tobago have utilized the opportunities, such as those presented at panorama competitions (among other situations), and scored lucrative arrangements of countless bands to the best of their ability, and additionally put up for sale, these scores, or versions of same.  Has COTT as the local organization overseeing composer's interests, and upon some determination of those 'derivative rights' considered how to collect from these 'scorers'?  MURKY waters.

It is unlikely that COTT has the energies or legal reach to pursue parties not native to Trinidad and Tobago, but who score music already arranged for orchestras by bona-fide arrangers.  The real losers may well be the local steel orchestras, arrangers who welcome work for the panorama season and other steelpan engagements during the year, and ultimately the sometimes close-knit communities and steelband culture and art form in Trinidad and Tobago.

Based on COTT/Demas' statements - if she is legally correct - what is clear here, is the inference that most steel orchestra who contracted arrangers in the past - have no rights to their panorama arrangements.  And some of them paid anywhere between one to fifty thousand dollars.  MURKY waters.

Remember the hypothetical case cited above of arrangers who may no longer have relationships with bands, but could hear of attempts to preserve their 'works' with Trinidad and Tobago steel orchestras - through scoring?  If they come forward and implement steps to claim derivative works, and compensation, and bands are unwilling to cough up the cash - those arrangers can now 'transfer their rights for payment of dollars' to the highest bidder, which can be wealthy private citizens, or foreign interests.  Using Desperadoes as an example, these MURKY waters can get legally clear - very quickly. 

Let's say, hypothetically, the band does not pay for these arranger's rights to Bradley's heirs, as Demas says is due them.  Can they not now, if they wish, turn around and sell those rights to another party willing to pay enough?  And to complete the ownership of the arrangement(s), the new owner(s) contact the original composer, to complete the process by obtaining authorization/rights?

This entire shift in the paradigm of the pan movement is troubling.  There appear to be others who will gain from this, should this precedent-setting Desperadoes/Bradley issue not be taken in hand.  People who got involved or initiated this particular train of thought, may not necessarily or really have the welfare of Bradley's heirs, or pan music, or composers' rights at heart.  Maybe one needs to look deeper.  Who stands to gain the most from this new alignment?

The key question, starting in Trinidad and Tobago, becomes:  who is best suited to exploit the catalog of Bradley's lucrative arrangements?  It would not be Desperadoes, even if they do acquire the rights to their previously-paid for arrangements.  Steel orchestras have no history of attempting to make further large-scale income off of arrangements they have paid to be done.  They perform for the love of their craft and culture. 

However, there is always outside interest.  But since most steelbands are busy just surviving in Trinidad and Tobago, who is doing this extra thinking, allegedly in the name of proper rights?   For a situation regarding intellectual property rights and transfer arrangements that COTT's Allison Demas admits publicly, remains informal - as of the date of this editorial?  Why start with an arranger who is dead, and also in reality, did in fact pass/waive his rights, transferring said rights to bands he arranged for, by virtue of his many public proclamations, that the bands owned the rights aka 'his arrangers rights'?   And remember this is not unique to Desperadoes.  This would affect all steel orchestras, and the entire culture of the steelband.  Again, who benefits from this change?

Consider for instance the championing of Anna Nicole Smith's case by the Bush Administration in the USA - they could not care less about what the former playgirl's financial straits are.  However, they have made it abundantly clear, that they look at her case as precedent-setting, and an opportunity to establish the jurisdiction of federal courts.  It is essentially a power struggle.  While they have made their motives clear, what, and more importantly, who is behind this magnanimous move supposedly on behalf of Bradley's heirs and steelband music arrangers?

For something that was so clear, implicitly understood and worked well for generations, even up to a few days ago - the Trinidad and Tobago steel orchestras' claims to ownership of arrangements many of them have paid much money for annually - are now in MURKY waters indeed.   From COTT's stance, it would appear the bands themselves seem to have no rights to their 'own arrangements' at this point.  That much seems clear.  So now - who represents the interests, the rights of the steel orchestras?

Editorial

2006 When Steel Talks - All Rights Reserved

 

Copyright 2006 -  Basement Recordings, Inc.   All Rights Reserved.

ANY REPRODUCTION, REPRINTING OR COPYING OF THE CONTENTS OF THIS, OR ANY OTHER MATERIAL - AUDIO, VISUAL OR TEXT - FROM THE BASEMENT RECORDINGS/WHEN STEEL TALKS/PANONTHENET WEBSITES, IS STRICTLY PROHIBITED, WITHOUT THE EXPRESS WRITTEN PERMISSION OF THE MANAGEMENT OF WHEN STEEL TALKS.

 

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