Bon Jovi, Donnie Iris and Copyright Law: A Conversation With Mark Avsec - Page 4
Well, I never heard the song. I knew how I wrote Ah! Leah! – I knew where I was when I wrote it. And I certainly never heard the guy’s song.
I blame the contingency-fee lawyers who took the case, trying to take a shot. Except the onus fell on me and Donnie – two lower-middle class guys who were simply trying to support their families with music.
The plaintiff, we learned during the trial, apparently went out to LA pitching the song to some MCA promo guy who promptly discarded the tape after a meeting. So the lawyers concocted this story where somehow the tape made the way to us to copy. We eventually heard the song during the trial I think – the songs were nothing the same and there were many, many titles registered with ASCAP/BMI called “Here We Go Again” or whatever.
It was suggested I pay the guy settlement money. I would not give him a nickel. The trial went to a jury trial – the whole nine yards. And we won. But Donnie and I lost everything the song made and more because we had to pay our lawyers.
I can now say – and it has taken me a long time to get there – that the lawsuit was the best thing that happened to me. Because I love copyright law – and I love my life now, being an intellectual property attorney, teaching at law schools and speaking – and also still writing music and playing.
gJg: So the outcome of the case made you decide to put the rock and roll dream on hold in favor of studying law?
MA: I became very interested in copyright law. That lawsuit made me think – “Geez, I did nothing wrong and I can be sued like that? Without any basis? I better learn how to defend myself.” And I began to think about the legal system and if there were mechanisms that could be put in place to dissuade meritless, frivolous lawsuits.
Since that lawsuit was decided, we had the Supreme Court in the United States decide the Fogerty lawsuit – ruling that defendants who prevailed in copyright infringement lawsuits – should be entitled to attorneys’ fees recompense from the losing party. The copyright statute already provided that the prevailing party could recover attorneys’ fees from the losing party. But before Fogerty, the statute was not applied in an even-handed manner to prevailing defendants and prevailing plaintiffs. So the Fogerty case was a step in the right direction.Continued on the next page