It's a story as old as the music business itself: A fanatical record collector jumps at the chance to bring some favorite tunes to a wider audience. Somewhere along the line someone doesn't get paid or claims copyright infringement. The whole well-intentioned project ends up in hard feelings and more often than not in a courtroom.
This particular story originated in a St. Louis apartment rather than a recording studio or boardroom. And in this case, it's not a songwriter or session player who's aggrieved but a compilation album curator who's claiming that his work and research were misappropriated.
Either way, it's a 21st-century spin on a sadly familiar story, complete with nasty social-networking posts.
The facts are these: Earlier this year, the Chicago-based record label Numero Group, famed for its high-quality reissue program, announced a new series of archival releases under the title Buttons. (Tom Lunt, one of the Numero Group's three principals, is a former St. Louisan.)
The first release, a compilation album entitled Buttons: Starter Kit, was assigned catalog number Numero 004. According to Numero's website, Starter Kit included "twenty songs from our original 004 cd, plus two bonus cuts, new liners, tons of sleeve scans, photos, and ephemera."
This was apparently news to St. Louis record collector Jordan Oakes. In 2003, he curated the original Numero 004, a double-CD compilation entitled Yellow Pills: Prefill. Starter Kit includes twenty of Prefill's original 33 tracks. Oakes is not thanked or acknowledged on the Starter Kit artwork. In fact, Oakes says that he did not even know of Starter Kit until two months ago. When he found out, he took to the Internet to voice his concern.
"I am the person who picked all of the tracks for Prefill, which was over a year's worth of work," Oakes wrote on Amazon.com. "Each of these songs originated [as a 45 or EP] from my very own collection. I picked every band...The label simply added a couple of tracks, removed my (acclaimed) liner notes and every trace of me ... apparently so they could circumvent paying the royalty agreed in the contract. I consider this theft."
In response, Numero's Ken Shipley posted, "Jordan asked for his version of the Prefill to be deleted. We did so at his request...He chose not to be involved in the project any longer, at great expense to Numero (we ended up destroying 3,000 booklets, tray cards, and slipcases)."
So who's right here? The answer involves those two words familiar to every lawyer and infuriating to every client: It depends.
Jordan Oakes is one of the foremost archivists of power pop, a guitar-heavy, riff-happy subgenre of rock & roll. As the publisher of Yellow Pills fanzine, he helped unearth and popularize a massive underground of power-pop bands dating back four decades, each trying to be the next Beatles or at least the next Raspberries. In the 1990s, he branched out into record production, curating four Yellow Pills: The Best of American Pop compilation albums for the Big Deal indie label.
"I was first contacted by Numero in about 2003," Oakes says via e-mail to the RFT. "They were familiar with the Yellow Pills CDs I did. The label was fairly new and wanted to work with me; they sought me out." Pitching it as a "trip through my mind," Numero execs Lunt and Kevin Shipley allegedly approached Oakes to compile a new Yellow Pills sampler for their then-fledgling label.
Oakes estimates that he spent about a year tracking down bands and record labels from his extensive collection. At one point, he says, Shipley and Lunt came to his apartment and took photo scans of "everything from the LP sleeves to my record crates." Prefill's original artwork included correspondence to Oakes from power-pop legends such as Shoes and Dwight Twilley. The front cover was a photo of Oakes' mailbox. Oakes was credited with research, and Shipley and Lunt were credited as reissue producers. Oakes allegedly has a signed contract for his services. (Note: The RFT has not seen any legal paperwork involved in this production.)
Prefill came out in 2004 and generally received positive reviews. Here the story becomes hazy: In 2006, Numero re-released Prefill with new liner notes and a cover graphic of an overturned pill bottle. On March 12, 2010, Numero posted an unsigned announcement to its website that Prefill would be deleted. "Despite our best efforts to lock down an extension for all of the tracks on Yellow Pills: Prefill, we were unable to get one artist to accept our standard Most Favored Nations deal. As we have less than 40 copies of the double CD in stock, it makes sense to put the record gently to sleep instead of destroying a repress at the eleventh hour."
Oakes thinks this has to do with his original contract. Around 2006, he says, he had been in talks with Numero about a second Yellow Pills compilation. After some negotiation — allegedly memorialized in e-mails and phone calls — Numero made an offer. Oakes found it insufficient and said so in a letter that he describes as "firm yet polite. I received back from (Numero) an e-mail that screamed at me." The two parties stopped communicating shortly thereafter.
Numero did not grant the RFT a requested interview. However, a label representative did e-mail us a statement:
The Numero Group ended its relationship with Mr. Oakes in 2008 at his request. Because our primary responsibility is to our recording artists and their fans, after our original agreement with Mr. Oakes had expired we struck a new deal with 11 of the 16 artists represented on the 33-track Numero 004 and created a new 22-track product as Buttons: Starter Kit, with new liner notes, new sequencing, and two new songs. Mr. Oakes has no ownership or stewardship in this new release. We believe that these circumstances, of which he is fully aware, have no relationship to, or impact on our satisfied clients and fans except as gossip and hearsay.
Oakes disputes this: "Prefill stayed in print for years after Numero and I stopped speaking. Why would I have a problem with it staying in print? The assertion is ridiculous."
Oakes says that he is now considering his legal options. "To my understanding, compilations and derivative works are born with a copyright that is held by the person who assembled it, if it comprised a work of authorship. I picked the songs — all from my collection and wrote the liner notes. The project was about me. And because I had a licensing/royalty deal with the label and was not an employee, I still own the copyright."
Attorney Bruce Oakes, who is Jordan's brother, has been in contact with Numero. "I feel strongly that if the court determined that Jordan did have a valid copyright, that the copyright was infringed," attorney Oakes says via e-mail. "It is [Numero's] contention that the new release is different enough from the original as to not raise any issues. The frustrating thing for Jordan is that it is cost-prohibitive to hire an attorney who practices in this area based on the amount of damages at issue."
Whether he would prevail is open for debate. Section 103 of the Copyright Act of 1976 does allow for protection of compilations, providing nothing in the work has not been used unlawfully. "The critical question is whether the selection, arrangement and organization of recordings is sufficiently original such that it's protected under copyright," says Alan Korn, a California-based attorney who specializes in music business and copyright issues.
This makes it fairly easy and straightforward to license preexisting compilation albums. The Prefill/Starter Kit issue is murkier. On one hand, Starter Kit did use many of the Prefill tracks, and it's unfortunate that Numero did not see fit to credit Oakes for his efforts. On the other hand, the label did approach each of the original copyright holders for Starter Kit and only used tracks by those that agreed to re-up.
"If the Copyright Office agreed and issued a copyright registration certificate, Oakes could pursue an infringement claim," Korn says. "It would then be up to the court to decide the scope of protection that Oakes retained. If a court ruled that his copyright in the compilation was narrowly protected, it would likely only protect against exact copying. In that case, Numero Group would have a strong case, since their subsequent collection is sequenced differently, doesn't include all the original recordings and adds a few additional tracks. Even if he prevailed, Jordan's entitlement to damages would depend on whether he registered his copyright interest in the compilation with the Copyright Office before any alleged infringement. If not, he could only recover actual damages — i.e., lost licensing income — or Numero Group's profits, neither of which appear to be substantial. So unless there's a prior registration on file, it's probably not the most cost-effective claim to pursue."
In the meantime, Numero has continued its inroads into the power-pop world. In the past two years, it has released a box set dedicated to Kansas City's Titan Records, compiled a second Buttons volume (From Champaign to Chicago) and released four LPs of rare and demo material by Shoes. Most of this material is excellent and lovingly packaged. Oakes says he's glad they've seen print. Mostly, he says, he's disappointed at the way this whole situation has played out.
"Like anyone, I simply expect to be treated fairly," he says. "Perhaps I was too trusting, but it doesn't justify how they're treating me now."