House Counsel
Courtney Love takes on the recording industry.
May 1, 2001
By Tracie L. Thompson
Nearly 50 years ago actress Olivia de Havilland risked her career by challenging Hollywood's infamous studio system, which bound film stars to long-term servitude despite a statutory seven-year limit on personal service contracts (Cal Lab C §2855). De Havilland effectively ended the system in 1944 when a California appeals court threw the "suspension" provision that Warner Bros. had invoked to extend her contract. De Haviland [sic] v Warner Bros. Pictures, Inc., 67 CA2d 225.
Now rock star Courtney Love is attempting to liberate recording artists from a similar system, made possible when the state Legislature amended the labor code in 1987. That amendment, section 2855(b)(3), permits the recording industry to require a specific number of albums within a certain time period and to recover damages if the recording artists fail to perform. Since its adoption the section has been used "as the hammer the industry holds over the artists," according to Love's attorney, A. Barry Cappello of Santa Barbara's Cappello & McCann.
Geffen Records, the company that controls Love's exclusive recording services, filed suit against the star early last year for lost-profit damages when she failed to deliver two promised albums. Geffen Records, Inc. v Love (LA Super Ct) Civ No. BC 223364. Cappello then filed a cross-complaint that challenges the 1987 amendment to the statute, alleging that it violates Love's constitutional rights to equal protection, due process, and freedom from involuntary servitude. Cappello says, "We don't owe them a nickel because their claim for damages is garbage. It's lost-profit damages of the most speculative kind."
Cappello notes that Love's band, Hole, had recorded two highly successful albums-Live Through This and the Grammy-nominated Celebrity Skin-within the seven-year contract period that had sold 2 million copies each. Recording companies make money, he says, by cutting their losses on some groups and attempting to extend the contracts of their top performers. Smashing Pumpkins, New Edition, Bell Biv DeVoe, and Beck are among the acts recently sued by their record companies under section 2855(b)(3) for failure to deliver specified albums.
Love's countersuit contends that the industry's standard negotiated recording contract, which may call for an average of five records in seven years, cannot possibly be performed because of such factors as marketing time, promotional tours, and release schedules for each album.
Worst of all, according to Cappello, is that an assignment clause in Hole's contract eventually put the band's management in the hands of Interscope Records, a label Love had specifically rejected in 1992. "You can't willy-nilly assign a personal services contract to anybody you want," says Cappello.
Russell J. Frackman, a partner with Mitchell Silberberg & Knupp in Los Angeles who represents Geffen Records, referred calls to Geffen's parent corporation, Universal Music Group (UMG). Senior Vice President of Corporate Communications Bob Bernstein declined to comment but forwarded a copy of the company's opposition filing. The brief argues that Love and Hole had "substituted new counsel for their experienced music industry counsel and sought leave to file a belated cross-complaint which, on its face, is outrageously overbroad, inflammatory, and meritless."
Indeed, Cappello isn't an entertainment lawyer but rather a specialist in business litigation. But after reviewing the contract Love had been advised to sign, Cappello says there's good reason for recording artists to look elsewhere for counsel. "Issue conflicts of interest are pretty endemic," he says, referring to the entertainment bar's common practice of representing both artists and record companies.
Cappello says his client is ready to follow in de Havilland's footsteps. "My client is the kind of person who can stand on an issue of principle and go all the way with it," he says. "There's nothing to stop her from settling, but one of the reasons she hired me is that I have a track record of taking cases to trial."
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