Monthly Archives: April 2012

Marching To The Same Drummer: Hal Blaine and The Wrecking Crew-Coming To A Theater Near You?

“Lie la lie, [Crash], lie la la la lie la lie, lie la la [crash]!”   The Boxer, Paul Simon

Elvis, Sinatra (Frank and Nancy), The Mamas and The Papas, The Beach Boy, Simon and Garfunkel, The Righteous Brothers, Sonny and Cher, Steely Dan, The Byrds, The Association, Herb Alpert and The Tijuana Brass, America, The Monkees–these diverse musical legends seemingly have little in common, both in terms of their music and the personnel who performed it.  Appearances and sounds, however, can be deceiving.  All of these icons relied on one man to pound out the beat in the recording studio.  From the big drum echo crashes in The Boxer to the emphatic thud that kicks off California Dreaming,  that man was legendary session drummer Hal Blaine.

Blaine was not alone in providing expert, albeit nameless, faceless musical punch to the music of he sixties and seventies. He and a handful of equally superb musicians formed a collection of studio players for hire that became known as The Wrecking Crew.  Similar to the session men at Motown known as the “Funk Brothers,” the “Crew” could be relied on to create just the right  sounds and moods  through their expert playing and uncanny skill at devising arrangements on the fly.  A few of the Wrecking Crew went on to stellar careers of their own, most notably Rhinestone Cowboy Glenn Campbell, and piano player Leon Russell.  But the rest, like Blaine and guitarist Tommy Tedesco, remained unheralded and anonymous, not even earning mention on the liner notes of the many hit albums they created. But their work was prolific and prodigious.

The Funk Brothers’ unsung genius finally came to light through the marvelous documentary Standing in The Shadows of Motown.  Now The Wrecking Crew is poised to get the credit that is long past due via a documentary of their own.   Tommy Tedesco’s son, Danny,  has a film in the can that pays homage to his dad, Hal Blaine, and the others.  It’s been shown and won awards and acclaim at SXSW, Sundance, and other film festivals.    It should be coming to a theater near you.

But there’s just one hang-up.  The Wrecking Crew played on so many records, for so many artists, on so many labels, that wrangling the necessary copyright clearances and licences for the film’s trove of music clips has proven quite the chore.  And an expensive one at that.  While the filmmakers behind Standing In The Shadows  had only Motown to deal with, Tedesco and company have had to haggle with multiple labels.  As recently reported in The New York Times, Tedesco says that “There are 132 music cues in this film, and you’ll know 99.9 percent of them. But when I asked one record company for a quote, they said it was going to cost $2.5 million.”  He’s been able to strike better bargains, but he is still short on cash to the tune of around $175,000.

According to the Times, with the music business on the skids due to declining record sales, digital piracy, and the stagnant economy, the record labels have tried to grab any opportunity to profit from their catalogues.  That’s spelled trouble for Tedesco and the film’s other producers.  But they have persevered.

Fundraisers, including a concert and an online campaign, are in the works.  Hopefully, before too long, the beat will go on and The Wrecking Crew, The Film will have its long-awaited  theatrical release.    Until then, we’ll have to make do with the trailer and all the great music that forms the Wrecking Crew’s true legacy.

Watch the trailer and learn how to donate @

Read the New York Times article @

QUOTE OF THE DAY:  “I didn’t realize the [bands] didn’t play on their own records until the Monkees came on [American Bandstand].”  Dick Clark

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The Angels Want To Wear My Red Shoes

“Oh, I used to be disgusted. And now I try to be amused. But since their wings have got rusted, you know the angels want to wear my red shoes.”  Elvis CostelloIn the music world, angels covet Elvis Costello’s red shoes. In the world of high fashion, the coveted red shoes come exclusively from Christian Louboutin. At least that’s what Louboutin thinks. For over twenty years, Louboutin has outfitted its luxury high heels with a lacquered red outsole. It claims to have built that colorful feature into “one of the most prominent brand identifiers in the United States and throughout the world.” Louboutin even got the United States Patent and Trademark Office to recognize trademark rights in the red lacquered outsole, granting Louboutin a coveted Federal Trademark Registration.

But Yves St. Laurent was unimpressed and undeterred. Despite Louboutin’s trademark and consistent efforts to police its trademark against infringers, YSL launched a red sole shoe of its own. Louboutin predictably sued, claiming the usual litany of evils and damages that typically populate trademark lawsuits. Louboutin argued that YSL’s red shoes would confuse consumers and weaken its strong trademark, all at the cost of irreparable injury to the heart and soul of Louboutin’s red sole trademark.

YSL fought back with a barrage of defenses.  Among them was YSL’s claim that Louboutin should not have a monopoly on the color red for shoes.  All shoe makers should have the entire spectrum of colors to work with, according to YSL.  Giving Louboutin sole control of red soles would put YSL and the likes of Jimmy Choo and Monolo Blahnik, not to mention Thom McCann (I’m dating myself here) at a competitive disadvantage.  In technical trademark parlance, YSL argued that Louboutin’s Red Shoe Trademark was “aesthetically functional.”

Trademark professionals and judges know that trademarks don’t just protect words or logos.  Trademarks can also cover product shapes and colors.  Owens Corning’s “pink” for home insulation is a famous example of a color trademark.  But the Supreme Court has drawn a line on the rights of companies to use trademark law to  claim a color as their own.  In certain circumstances, a single color used for a product can deserve trademark protection, when consumers have come to associate that color as the source of the product, just as they associate “Golden Arches” with McDonalds.  The Court has cautioned, however,  that “functional” uses of color cannot be trademarked. Qualitex Co. v. Jacobson Products Co., 514 U.S. 159 (1995).  ( In that case, the alleged color trademark was a particular shade of  green/gold used by Qualitex for dry-cleaner press pads.)

In particular, the Supreme Court in Qualitex endorsed in general terms the doctrine of “aesthetic functionality,” a concept that had vexed and continues to vex judges and lawyers.  Under the doctrine of aesthetic functionality, an aesthetic feature of a product can be functional in the sense that it serves a purpose beyond identifying a brand as being sold by a certain company.
The Supreme Court left the ironing out of the aesthetic  functionality doctrine to other cases and other trademarks.

The Louboutin v. YSL case is the latest and most prominent example of the challenges courts face when called upon to grapple with the concept of aesthetic functionality.  The trial court denied Louboutin’s request to put a stop to YSL’s use of red soles.  According to the court, Louboutin’s red sole is aesthetically functional–shoemakers such as Louboutin would be put at a competitive disadvantage if red is removed from their design palettes.

Now Louboutin is appealing that ruling.  The lawyers for each side argued their positions last month, and a decision is expected later this year.
So as we wait for the other shoe to drop, we can listen to Mr. Costello and dream of strolling the sidewalks of 5th Avenue or the Champs Elysees in Louboutin and YSL.

“Whenever I’m in a situation where I’m wearing the same as 600 other people and doing the same thing as 600 other people, looking back, I always found ways to make myself different, whether it be having a red lining inside of my jacket, having red shoes, it hasn’t changed.” Jeremy Irons

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Shock and Oz: Nikolai Tesla, The Forgotten Wizard

“He was a master of the art of electricity He lectured on tours and circuitry.  . . He had a room full of switches and dials and lights and a head full of clouds and eyes full of sight.”  Randolph Street by Bruce Springsteen

Thomas Edison is revered as the father of electricity.  Inventor of the light bulb.   But as this fascinating article in UVA Today reveals, a less heralded, more flamboyant,tragic figure, Nikolai Tesla, may have been the true genius, the man ahead of his time.

Tesla pioneered Alternating Current, today’s standard in the U.S.  Working at the turn of the century at the dawn of the electric age, Tesla was a true dreamer of pictures.  He envisioned a world where people communicated over long distances wirelessly.  While perhaps he did not imagine the dominance of iPhones and texting mania, his vision of the future uncannily matches our world today.

Tesla was also a showman–famous in his day for staging elaborate demonstrations of the power–and safety–of his Alternating Current.  In his New York quarters, he would leave guests awestruck as electric current coursed harmlessly through his body, or as he seemingly hurled or cradled lightning bolts in his bare hands.

Tesla was also ahead of his time in making Intellectual Property, patents in his case, the currency of his business ventures.  Tesla battled Edison repeatedly in the courtroom and repeatedly won, taking cases all the way to the Supreme Court.

Sadly, Tesla’s business acumen did not match his mastery of science and law.  He dreamed big, and his biggest ventures failed.  Investors such as JP Morgan abandoned Tesla, and he fell into the shadow of history.

But his story lives on, and as the UVA article suggests, it is high time that Hollywood took note.  Another industry already has–when a maverick auto maker decided to extravagantly launch the world’s first totally electric performance sports car, and then tag it with a sticker price guaranteed to shock, they must have figured that only a brand name that paid homage to a similarly outlandish visionary would do.  So of course, they named their $100,000 plus electric car the TESLA.

QUOTE OF THE DAY:  “Electricity is really just organized lightning.”  George Carlin

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Google Goes Vertical: Honors The Inventor of The “Hookless Fastener”

“Zippity doo dah, zippity ay, my oh my!”  Disney’s “The Song of the South.”

Google routinely marks achievements, large or small, by replacing its regular multi-colored Google Logo with intriguing designs.  Today, Google honors a man who, though anonymous to most, played a huge role in how we dress, and undress.

That man is Gideon F. Sundback, inventor of the modern zipper.  His story, and the story behind Google’s homage, are detailed in this article–

“Zipper” was originally the brand name for the device Sundback called a “hookless fastener.”  That name lacked  pizzaz  and before long, the brand name became the product’s generic name, saving us all quite a mouthful.

But zipper’s trademark legacy did not end with its passage into genericnesss.  A vestige lives on in a now-famous trademark  for cigarette lighters.  Rumor has it that the founded of that lighter company so admired Sundback’s invention that he was inspired to borrow the name of Sundback’s invention, calling his lighter company Zippo.

Sundback’s innovation may seem to pale in comparison to Edison’s, Ford’s, Graham Bell’s, Marconi’s, or Steve Jobs’.  But take a moment.  Imagine a world without the zipper.   A population of billions fumbling with their button flies.  Then give thanks for the zipper–the consummate invention for  modern times.

QUOTE OF THE DAY: “Zippers are primal and modern at the very same time. On the one hand, your zipper is primitive and reptilian, on the other mechanical and slick. A zipper is where the Industrial Revolution meets the Cobra Cult, don’t you think? Ahh. Little alligators of ecstasy, that’s what zippers are. ”  ―    Tom Robbins

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More on Levon Helm: The Weight of Business Became Too Great

“I was lost, I was gone, listening to Levon.”  Marc Cohen

Levon Helm, who I wrote about earlier, died yesterday.  He was 71.  Here’s an article from Forbes that helps explain why the Band held its “farewell concert” in 1976, less than a decade after their first release.

Divide and conquer might have been a good strategy for Julius Caesar, but it is a lousy one for any collaborative enterpirse, especially a musical group.

The article also talks about the success and acclaim Levon earned and received late in his life.  He built a recording studio near Woodstock, that magical place where music blossomed so long ago.  My dear friend and client Ana Egge recorded her most recent CD, Bad Blood, in Levon’s Studio, in the shadow of his home.  Another legendary troubadour, Steve Earle, produced, played, and sang on the record.  One night, late into a furious recording session, Levon wandered into the studio.  He was wearing his bathrobe against the Fall chill, and sipping from a cup.  He didn’t stay long, nor say much.  But the nod of his head and smile on his face spoke volumes.  The record that Ana and Steve made in Levon’s barn has the burnished raw sound that harkens back to the Band’s finest works.  Check it out at

And listen to Levon.  You’ll be lost, you’ll be gone.

QUOTE OF THE DAY: “From what I’ve heard from the outside sources for many years I was very, very much surprised and I’m very happy to say we think the people of this country should be proud of these kids, not withstanding the way they dress or the way they wear their hair, that’s their own personal business; but their, their inner workings, their inner selves, their, their self-demeanour cannot be questioned; they can’t be questioned as good American citizens. ”  Chief of Police at the Woodstock Music and Arts Festival, August, 1969

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Teach Your Children Well: Teller of Penn and Teller magic act sues over trick theft

“Try to understand, try to understand, try, try, try to understand. He’s a magic man.”  Heart

Houdini dazzled by flirting with danger and death.  Penn and Teller play it safer, mixing astonishing tricks with amusing banter and mime.  Penn is the banterer–quick with asides in his gravelly voice.  Teller plays the mute.  No one has heard him speak.  No one ne knows his first name.  No one, that is, except those of us to whom he was “Mr. Raymond Teller” when he taught Latin at Lawrence High School in Lawrenceville, NJ, during the mid ’70s.  To us, he was quirky, eccentric, cerebral, and fascinating.  We marvelled over his command of his subject as much as his mastery of magic.  He’d routinely mesmerize us with tricks that later became staples of his street act in Philadelphia, then his and Penn’s stage act.  One trick I remember vividly had Teller swallow a handful of sewing needles, then extract them by ingesting a piece of thread and pulling out the threaded needles one by one.  It sure beat calculus.

Now, Teller has sued a Dutch magician who’s threatening to reveal the secrets behind one of Penn and Teller’s signature tricks–cutting the petals off a rose without ever touching them.  The attached article describes the trick and the lawsuit.  Teller of Penn and Teller magic act sues over trick theft. Teller had the foresight nearly twenty years ago to copyright this trick, describing it in detail with words and illustrations.  He just may pull off one of his greatest feats, avoiding copyright pitfalls that have plagued efforts by fellow magicians to protect their original tricks.

Once again, Teller is playing the dual role of magician and teacher.  If his suit succeeds, he’ll have provided the roadmap for other magicians to protect their tricks.   And that would be some rabbit to pull out of his hat.

QUOTE OF THE DAY:  “What the eyes see and the ears hear, the mind believes.”  Harry Houdini

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Old Enough Now To Claim Your Name: Neil Young Trademarks New Audio Format To Bring Studio Quality Sound to MP3

“We leave our tracks in the sound.”  Neil Young, The Painter.

Neil Young is the chameleon of Rock n’ Roll.  He’s been everything from the sensitive folkie who charmed us with “Heart of Gold” to the cacaphonous Godfather of Grunge who kept us “Rockin’ In The Free World.”  In between, he’s dabbled in Rockabilly, Blues, and even sampled techno pop with his infamous “Trans,” where, legend has it,  his heavily processed vocals prompted mogul David Geffen to sue him for failing to deliver a genuine Neil Young record.

Neil Young’s genius is not confined to simply composing, playing and singing songs.  He’s a model train buff who owns a stake in Lionel.  He’s an inventor who holds several patents.  He’s developed a hybrid car–a 1959 Lincoln convertible called LincVolt–that gets 100 miles a gallon. And now, he’s turning his restless energies to a problem that long has vexed him and other audiophiles–the sound quality of digital music.

For years, Neil and other purists have bemoaned the state of CDs and MP3’s that have replaced vinyl as the main source of music consumption.  As Young writes on his website “Since the advent of the CD, listeners have been deprived of the full experience of listening.  With the introduction of MP3s via online music services, listeners were further deprived.”  According to Young, a typical MP3 download loses 95% of the data found on an analog recording master.  To paraphrase Neil, that’s a lot of sound quality fading away.  And to Neil Young, that just will not do.  So he’s planning to change how we download music.  Young reportedly met with Steve Jobs before his death to explore making studio-quality downloads available to everyone.  And in a post on his website, Neil predicts that 2012 will be the year of  High Resolution Audio to deliver “the spirituality and soul of music . . . music the way the artists and producers [heard it] when they created it in the studio.”

It’s not clear how far along Neil’s project has advanced.  But he’s evidently making progress.  Last year, Young applied for six Federal trademarks: IVANHOE, 21st CENTURY RECORD PLAYER, EARTH STORAGE, STORAGE SHED, THANKS FOR LISTENING, and SQS (Studio Quality Sound).

These trademark applications have cleared their first hurdles at the Trademark Office.  But, as Young sings in “The Painter,” “It’s a long road behind me.  It’s a long road ahead.”  Competitors now have a short window to lodge objections to the applications.  If no one objects, Young still must prove that he’s actually begun using these trademarks for the products and services mentioned in the applications; he’ll have up to three years to  do that.

So for now, we’ll have to wait to see if Neil Young’s crusade to upgrade the MP3 listening experience is something we’ll be “finding out is real.”  Those rooting for his success surely hope that Neil isn’t “just a dreamer,” and his quest not “just a dream.”

QUOTE OF THE DAY: “Music is the movement of sound to reach the soul for the education of its virtue.”  Plato

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You Can’t Raise A Caine Back Up When He’s In Defeat: Levon Helm Loses Courtroom Battle

“Hey, wait a minute Chester,  I’m a peaceful man!”  The Weight

In 1968, Levon Helm, Robbie Robertson, Rick Danko, Richard Manuel, and Garth Hudson holed up in a colorful cottage near Woodstock, NY, called “Big Pink.”  These five musicians had backed Bob Dylan’s notorious leap from acoustic strummer to electrified frontman, earning the condemnation of purists at the Newport Folk Festival.  At first, Helm and his cohorts remained anonymous, referred to collectively as simply “The Band.”  But before long, and on the strength of their earthy, gutsy music, the group rose to iconic status, and their afterthought of a name became legendary.  Martin Scorsese’s landmark concert film, The Last Waltz,  not only captured The Band’s farewell performance, but inspired the seminal mockumentary This Is Spinal Tap.   Among the Last Waltz’s highlights is drummer Levon Helm’s impassioned performance of the  classic song “The Weight.”  In his prematurely haggard voice, Levon delivered one of Rock’s signature lyrics “Rolled into Nazareth, I was feeling ’bout half-past dead.”   Then, joined by the weathered harmonies of  Band mates Danko and Manuel, Levon dove into the enigmatic chorus “Take a load of Fannie, take a load for free, take a load off Fannie, and, and and, you put the load right on me.”

After The Band disbanded, Helm thrived as an actor and musician, trailblazing the amalgam of folk, rock, and country music known as American and becoming its beloved elder statesman.  Through it all, Levon and “The Weight” remain forever linked together.  It came as no surprise, then, that Levon became less than gruntled to discover seven years ago that his signature vocal turn in The Weight had been licensed as the theme for a cell phone TV ad.  Helm sued, claiming that the commercial use of his voice violated his right of publicity.  The so-called “ROP” protect’s a person’s name. likeness, and voice from unauthorized use by others, especially commercial uses.  Gravel voiced singer Tom Waits successfully wielded his ROP to block a commercial that employed a Waitsian sound-alike after Tom himself refused to allow use of  one of his vocal performances.  If Waits could stop and impersonator, Levon must have thought that his lawsuit, against the real McCoy, would be a sure thing.  And it might have been, except for one thing.  Years ago, Levon and The Band signed away their rights in “The Weight” and many other songs.  Their record company, not Levon,  owned the recordings.  And the record company, not Levon, had the right to decide where that music can be used–including the right to license “The Weight” for use in commercials.

Like the father he played in Coal Miner’s Daughter, Levon tried to dig himself out from under the weight of The Band’s prior agreement.  He didn’t deny having signed away some of his rights.  But he argued that he had kept his ROP.  Both the trial cour and the appellate court had little trouble rejecting Helm’s theory.  The trial court didn’t let the case go to trial, and the appeals court affirmed that summary ruling finding that Helm and The Band had held back nothing when they signed away their rights.  So to paraphrase “The Weight,” when Levon Helm asked the judge for relief, “No” is all he said.


“Ah, mon cher, for anyone who is alone, without God and without a master, the weight of days is dreadful.” Albert Camus

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No Direction Home?: British Boy Band One Direction Hits U.S. Shores and Trademark Shoals

“How does it feel?  To be on your own.  With no direction home.  Like a complete unknown.”  Bob Dylan

Those old enough to remember The Beatles debut may be surprised to learn that another British Invasion is underway a generation later.  Back in ’64, a nation roiled by tragedy discovered a quartet of musical savants, boyhood friends who honed their chops in the dank basement clubs of Liverpool and Hamburg.  A gifted producer, George Martin, molded their virtuosic talents to produce the greatest library of pop music the world has ever known.  When the cadaverous Ed Sullivan brought their infectious music into our living rooms on a winter’s eve, he instantly lifted the pall that had blanketed America since that dark Dallas day in November of ’63 and changed the world of music forever.

Today, our shores are graced by another collection of British lads, brought together by an even more formidable  impresario–Simon Cowell, the dyspeptic English architect of American Idol and The X-Factor.  The man whose scowl has sunk a thousand careers and launched several others.  This time, instead of a Fab Four, we have a pre-fab five called One Direction.  This band’s music has been percolating among tweens and teens for almost a year.  Now, One Direction is shattering the mainstream in a huge way.  The band has a number one album, outstripping the latest release by American icon Bruce Springsteen.  And they’ve had their own televised intro to the American viewing public via a coveted performance on Saturday Night Live.

By almost every measure, the “one direction” these phenoms seemed headed was up.  Nothing stood in the way of their meteoric rise–nothing that is except “softrights’ in the form of a trademark claim by another band by the same name–an unheralded American group also called One Direction.  Hailing from Los Angeles, that homegrown One Direction claims to have coined its name in 2009, well before the British belters even caught Simon Cowell’s ear.

If the American band’s claims of prior adoption and use pan out, it could spell trouble, with a capital T that stands for Trademark Infringement.  American trademark law gives ownership of a band name to the outfit that uses it first in this country.  With nothing to lose and everything to gain,  America’s One Direction has fired the opening salvo in a legal dispute that could wind up sending the British band to the wings.  In their complaint filed in a U.S. Federal court, the L.A. band seeks damages to the tune of $1 million as well as an injunction that would force Simon Cowell’s proteges to pick a new name.

The dispute is still in its infancy, but already, the British One Direction faces a stark choice, either pay the piper to continue using the name under which its accumulated fame and fortune, or take its chances before an American judge and Los Angeles jury.

Whatever the outcome, Simon Cowell’s “direction” in building his next international super group will surely include a visit with a U.S. trademark lawyer.  As for the American One Direction, the answer to Bob Dylan’s questions from “Like A Rolling Stone” is hardly blowin’ in the wind.  With their lawsuit taking center stage, being a complete unknown must feel pretty, pretty good.

Quote of the Day:  “If you don’t know where you’re going, any road will take you there.” George Harrison.


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