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2007.04.05

Finding Of Facts And Conclusions Of Law

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>>  Warner/Chappell is protecting their copyrights, as is their legal responsibility. Their attorneys have sent a cease-and-desist letter to all involved with Future/Now Films, who have brought this upon themselves... I'm no saint. I've been to prison, I've been to skid row, I've been homeless and in rehab and have known some shady characters in my day, but rarely have I come across people whose actions have been as cowardly, unprincipled, duplicitous and fundamentally dishonest as Dave Thomas, Laurel Legler and their attorneys...

An Open Letter from Wayne Kramer
from DKT-MC5.com website - April 1, 2004

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>>  Laurel Legler, whose nine-year film project languishes in limbo, counters, “I disagree with everything that comes out of Wayne Kramer’s mouth, because he doesn’t tell the truth.  We never reneged on agreements with Wayne Kramer. We tried to give him everything he wanted.”

Reprise by John Sinclair
from Metro Times, Detroit  - June 9, 2004

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>>  "It's a shame," says Patti Smith, who had two children with the guitarist [Fred "Sonic" Smith]. "I understand from my son [Jackson] that it's a wonderful movie, and I support it. It's being blocked by Wayne Kramer, and I think that's unfortunate. My son is one of the true guardians of his father's name, and he felt that the movie served his father well, and he was hoping that it would come out. These things are always a shame, when someone is trying to do something good and it gets tainted by greed."

Once More With Feeling by Greg Kot
from Chicago Tribune (May 30, 2004)

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>>  The arguments on both sides are complex and passionate... Kramer says the filmmakers are trying to rip him off; the filmmakers say Kramer is trying to shake them down... 

Says Thomas: "People will get to see this movie eventually; we didn't spend seven years to roll over because there were some legal problems.  I don't really think it's Wayne that we have to work it out with, it's actually Warner Music [the MC5's former record company] and Warner/Chappell [its publishing company].

Squabble Has Release OF MC5 Film On Hold by Jim DeRogatis
from Chicago Sun-Times - June 11, 2004

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>>  [MC5 - A True Testimonial] comes closer to capturing the explosive madness of that musical era than memory ever could. During more than six years of research and shooting, Chicago filmmakers David C. Thomas and Laurel Legler enjoyed full cooperation from the three surviving five and imbued the project with the labor-of-love devotion the band deserves.

A New York Times review by Elvis Mitchell on the eve of release (April 23, 2004) heralded the film as a "riveting, all-elbows-and-knuckles documentary" about a band committed to "delivering body blows to the dozing status quo."

Unfortunately for fans of the band and music lovers in general, a dispute between Wayne Kramer and the filmmakers over musical rights blocked the release at the last minute, with no sign of a resolution a year later...

The dispute drew blood from wounds that had never completely healed, with Tyner's widow Rebecca Derminer (also featured in the movie) taking the side of the filmmakers and Patti Smith and son Jackson expressing resentment toward Kramer as well. The band's legacy was very much the legacy of these two men, a legacy honored by the film that a squabble over money would suppress... Antagonism intensified with Kramer's release that summer of a concert DVD titled A Sonic Revolution: A Celebration of the MC5.

from Kick Out The Jams by Don McLeese - (Continuum Books - 33 1/3 series)
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>>  "It's important for us to remember that there's really one issue here," says Legler. "It's not that complicated. They got this deal with Image Entertainment to put out the Sonic Revolution DVD, and in order to do so and capitalize on whatever MC5 money might be out there, they had to block the release of this film. It's about their DVD versus our film, and everything else is some kind of smoke screen. If they didn't have that deal they would not be doing this."

The MC5 Movie You May Never See by Peter Margasak
from The Reader, Chicago  (April 23, 2004)

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“I said to Laurel and David all along, their journey has so paralleled that of the MC5,” says Tyner’s widow Becky. “Now we’re at the breakup of the MC5. The bully tactics, the pressure. It’s almost cosmic...”

Jackson Smith, the Detroit-based musician son of Fred and Patti Smith, is also disappointed that release of “A True Testimonial” is being held up. “It’s a travesty that it would be blocked,” Smith says. “It’s a great document of the band, it’s a great document of life, and it’s a great document of things ... far and beyond the band...”

Famed Grande Ballroom poster artist Gary Grimshaw, who recently moved back to Detroit from San Francisco, is “disturbed” by Kramer’s opposition to the film. Grimshaw did the cover graphics for the “True Testimonial” film, as well as for Kramer’s film. “I had no idea when I did that for him that there was going to be any problem, that Wayne would set it up as the only authorized MC5 movie as opposed to ‘A True Testimonial.’ If I’d known, I don’t think I would have done the cover for him.”

MC5 In Turmoil Yet Again by Susan Whitall
from Detroit News - March 31, 2004

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"Sometimes we don't see ourselves as we really are, sometimes we need an outsider to cut through the bullshit and portray the truth. Sometimes there is no truth, all you have is what's in the moment.  Maybe the parties involved are too close to it. Because the end was painful. The end of the band was painful, and the end of the movie is painful because it shows the truth. And the truth is not grand or pretty or triumphant. The end is sad. The end is about drugs and desperation and falling apart.

But it is what happened. And there is a certain dignity in letting the truth be what it is and telling the past simply, without embellishment. While watching the movie, I thought to myself: no matter where any of you guys are now, you can look at yourself in the mirror every single day and say, I was in the MC5. I made history. I changed rock and roll. End of story. No matter what you wanted to have happened, no matter if the band crashed and burned before its time, no matter if you didnt achieve what you thought the band had the potential of achieving. You were still the fucking MC5 and YOU CHANGED THE WORLD. I realize that doesn't solve arguments or doesn't pay the bills, but I wish it could provide them with some kind of inner peace or tranquility or resolve or at least smug satisfaction."

The MC5: A True Testimonial by Caryn Rose
from jukeboxgraduate.com (April 30, 2004)

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"That's the confusion that's always held people back on this planet. Everybody is involved with all this bizarre confusion and stirring up all kinds of lies and misinformation..." - Rob Tyner

We must remember always that accusation is not proof and that conviction depends upon evidence and due process of law." - Edward R. Murrow

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§ DAVID THOMAS, LAUREL LEGLER AND FUTURE/NOW FILMS FREE AT LAST???

"It's good to remember the 60's, but some say if you remember the 60's you weren't there.  Perhaps to assist all of us in remembering the 60's, Defendants David Thomas and Laurel Legler made a film on the MC5, a 60's Detroit Rock and Roll band that made its mark on American history with loud rock and roll and radical perceptions positing an imperialistic and materialistic America.  This lawsuit teaches that materialism remains with us, as Plaintiffs vigorously seek money from Defendants.  Although the MC5 faded away largely due to drugs, the band lingers on in the memory of many, and would be known to many other but for pending legal feuds."

The Honorable Andrew J Guilford, United States District Judge

Findings Of Fact And Conclusions Of Law, issued March 31, 2007

DETROIT TANGO SYNOPSIS:  To briefly summarize this case, Wayne Kramer, Margaret Saadi Kramer and Muscletone, Inc. sought damages for copyright infringement, breach of contract, fraud and related claims. "After reviewing the facts at trial, focusing on the conduct of the parties as Thomas and Legler were investing time and money into making the Film, the Court concluded the facts made it inequitable, unfair and improper to award any recovery against Future/Now on copyright related claims and that the required elements of an enforceable contract or a quantum meruit or fraud claim were not met."

The Court also found that 14 of the 15 compositions were co-owned by the widows and heirs of Rob Tyner and Fred "Sonic" Smith, who each had granted permission for use of those songs.  The remaining copyright issue involved only the song "Poison; Kramer argued he was assigned the rights to "Poison", and claimed the use of "Poison" in the film created a copyright infringement. The Court disagreed, finding that "Poison" was "an insignificant part of the Film."

>>  VINCENT COX, FUTURE/NOW ATTORNEY:  When did you first learn that Warner/Chappell would refuse to license a composition for use in a film if a songwriter objected?

WAYNE KRAMER:  I heard a story over there about sometimes a filmmaker wants to use a musician's song in his movie, but, for whatever reason, the musician doesn't want the song in the movie.  It happens from time to time.  The filmmaker, then, usually buys the songwriter a Cadillac or offers him a great deal of money.  They never attack the songwriter.

Here's the complete court document.

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CASE NO. CV 05-8381 AG (CTx)

WAYNE KRAMER, an individual, MARGARET SAADI KRAMER, an individual, and MUSCLE TONE, INC., a California corporation 

Plaintiffs

v.

DAVID THOMAS, an individual,  LAUREL LEGLER, an individual, FUTURE/NOW FILMS, INC., an Illinois corporation, ZENTA, LLC., an Illinois limited liability company, FROM THE HEART PRODUCTIONS, INC., a California corporation, CAROLE LEE DEAN, an individual, and DOES 1 through 10 inclusive.

Defendants

FINDINGS OF FACT AND CONCLUSIONS OF LAW

It's good to remember the 60's, but some say if you remember the 60's you weren't there.  Perhaps to assist all of us in remembering the 60's, Defendants David Thomas and Laurel Legler made a film on the MC5, a 60's Detroit Rock and Roll band that made its mark on American history with loud rock and roll and radical perceptions positing an imperialistic and materialistic America.  This lawsuit teaches that materialism remains with us, as Plaintiffs vigorously seek money from Defendants.  Although the MC5 faded away largely due to drugs, the band lingers on in the memory of many, and would be known to many other but for pending legal feuds.

Plaintiff Wayne Kramer ("Kramer") was a leader of the band and now joins with other plaintiffs as he seeks damages for copyright infringement, breach of contract, fraud, and related claims. Kramer argues he was assigned the rights to the song Poison, and claims the use of Poison in the Film creates a copyright infringement. After reviewing the facts at trial, focusing on the conduct of the parties as Thomas and Legler were investing time and money into making the Film, the Court finds that the facts establish an estoppel which makes it inequitable, unfair, and improper to award any recovery against any Defendants on copyright claims. The Court further finds and concludes that the required elements of an enforceable contract or a quantum meruit claim or a fraud claim were not proven.

FINDINGS OF FACT

After reviewing the evidence, and evaluating the credibility of the witnesses and other evidence, the Court makes the following findings of fact, including any findings of fact found in the Conclusions of Law.  The parties submitted no proposed Findings of Fact and Conclusions of Law, and stipulated to only two facts.  Some of the facts below were found by the Court to be without substantial controversy as part of summary judgment motions which reduced the claims presented at trial.  A proper transcript has not been prepared, so there are no transcript references.

1.  The copyrights for the subject musical compositions are in their renewal ter,. (Admitted.).

2.  Kramer is an original member of the MC5 band. (Admitted.)

3.  Plaintiffs' claims are founded upon general federal questions and copyright jurisdiction, 28 U.S.C §§ 1331 and 1338(a). (Order on Summary Judgment Motions.) The Court accepted supplemental jurisdiction on the other claims under 28 U.S.C. § 1367(a).

4.  Federal counts (other than injunctive relef) pleaded against Defendants are Counts One through Three of the First Amended Complaint  Counts One through Three allege, respectively direct, contributory, and vicarious copyright infringement stemming from the production and distribution of the theatrical release of the documentary [Film] "MC5: A TRUE TESTIMONIAL," the DVD version of the documentary, and a three DVD set distributed by From The Heart Productions, Inc. (FTH) entitled "THE ART OF FUNDING YOUR FILM."  The three DVD set incorporated slightly more than an hour of a presentation by Thomas and Legler and included a picture of a television playing a six-minute trailer for the documentary.

5.  Kramer has the right through assignment, commencing as of any infringements on or after March 1, 2004, to sue Defendants for copyright infringement. (Order on Summary Judgment Motions.)

6.  Kramer's copyright claims alleged infringement of fifteen compositions all of which were either registered or published before 1972, and therefore subject to the provisions of the Copyright Act of 1909. All of the compositions that are the subject of the copyright claims are now in their renewal term. (Order on Summary Judgment Motions.) Following summary judgement, the only remaining copyright issue involves only the song "Poison", as discussed in Plaintiffs' Opening Statement.  "Poison" is an insignificant part of the Film.

7.  The renewal copyright interests of co-authors Robert Derminer and Fred "Sonic" Smith in fourteen of the fifteen compositions are co-owned by their widows and heirs pursuant to section 24 of the Copyright Act of 1909, former 17 U.S.C. section 24, in that Deminer and Smith died before the commencement of the renewal term. (Order on Summary Judgment Motions.)

8.  Over the years, there has not been a clear record kept of ownership rights to copyright claims for MC5 music, with confusion resulting from distraction, indifference, and other matters.  Non-party witnesses such as Angela Davis and Michael Davis identified this confusion.

9.  In or around 1995 Thomas and Legler conceived an idea to produce a documentary motion picture about the MC5.  Thereafter, Thomas and Legler worked long and hard to produce a quality film, and they succeeded.  Further, they expended substantial money on the film, with some of the money coming from family and friends.

10.  In or about March 1996, Thomas and Legler approached Kramer with the idea for the film.  Kramer showed great interest in the project, strongly encouraging defendants to produce the film.  Kramer understandably wanted the film completed.  Kramer believed the film might bring renewed interest to the MC5, and that this could be financially rewarding to him.  He therefore continued to encourage Thomas and Legler as they worked on the film and spent substantial money on the film.  Although there were discussions about different roles for Kramer and Margaret Saadi Kramer concerning the film, no terms were set or restrictions made that would reduce incentives or otherwise discourage Thomas and Legler during the formative years of producing the film. 

Disputes between the Plaintiffs and Defendants arose only after Defendants demonstrated that the film they were crafting could be successful. The MC5 is historically significant and its music and story merit being heard today.  The film had and still has the potential to spread the music and story of the MC5. Plaintiffs persisted in continuing to encourage Thomas and Legler to complete the film.  Thomas and Legler took action in reliance on that encouragement.  Further, no terms specific enough to form an enforceable contract were ever agreed upon between any plaintiff and any defendant, and no defendant made any actionable false representations to any plaintiff.

11.  Mrs. Kramer was very credible when she testified that she gave assurances that she and Kramer would "go out and make sure the deal happened" and that she would support the production of the film "in whatever way possible."  Mrs. Kramer also stated that she and Kramer would not impinge upon the budget for the Film, but would look to possibilities arising from any companion soundtrack.

12.  There is insufficient factual basis to establish that a contract was formed that any of the Plaintiffs could enforce.  Contract terms were never certain, and there was no meeting of the minds.  The burden of proof on any contract claim was not met by any of the Plaintiffs.

13.  There is insufficient factual basis to establish any claim for quantum meruit.  The burden of proof on any quantum meruit claim was not met by any of the Plaintiffs.

14.  There is insufficient factual basis to establish any claim for fraud.  The burden of proof on any fraud claim was not met by any of the Plaintiffs.

15.  There is insufficient factual basis to establish any claims against any Defendant.  The burden of proof on any claim was not met by any of the Plaintiffs.

16.  There is insufficient factual basis to establish any damage to any of the Plaintiffs caused by any of Defendant.  The burden of proof on the issue of causation and damages was not met by any of the Plaintiffs

17.  Thomas and Legler formed Future/Now Films, Inc.,as the entity responsible for production of the Film.

18.  Thomas and Legler are principals of and members of Zenta, LLC.

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>>  Court Exhibit: E-mail message from Margaret Saadi, 4 September 2001:  i write to let you know that i also received the zenta LLC film paperwork and at first pass, it reflects exactly what wayne, dennis and michael (as well as becky tyner) agreed to many years ago when this idea was in it's conception phase.  now that the film has (miraculously and righteously!) entered its post-production phase, the film makers appear to be attending to all business points... i am happy to tell you that all parties involved with the MC5 on my end are completely in support of future/now films undertaking thus far.  dave and laurel have shown themselves to be quite talented, and in the last five years i have developed a great trust in them as people and as devoted storytellers....

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19.  The Film was eventually produced by defendants Thomas, Legler, Future/Now, Inc., and Zenta, LLC in or about the year 2002. 20.  In 2002, with the assistance of plaintiffs, defendants had obtained from Warner/Chappell a one year "festival license." 

21.  Thomas and Legler appeared at a seminar in Chicago, Illinois in December 2003 for aspiring documentary film-makers.  The event was sponsored by defendants Carole Lee Dean and FTH.  At the seminar, defendants exhibited portions of the MC5 film.

22.  The production and distribution of the seminar and the three DVD set was accomplished by FTH and Dean for non-profit and educational purposes.  The 12 hour three DVD set contained a 6 minute trailer.  The three DVD set is a transformative work in that it added a substantial amount of new matter to the original work, with a further purpose and a different character from that for which it was first used, and it altered the original by creating new expression, meaning, and a different message.

23.  The effect of the use by FTH and Dean of the Trailer upon the potential market for or value of the copyrighted works was miniscule.

24.  The actions of FTH and Dean in producing and distributing the three DVD set were made for a non-profit educational purpose.  Only 26 copies were sold.  Defendants had no idea there was a legal issue with distribution, and received gross revenues of $1,690 for the sale of 26 copies.

25.  Warner Chappell and plaintiffs knew the facts of defendants' plans to distribute the documentary film, promised to negotiate a license in good faith, intended that their conduct in making promises to Defendants and delaying to act would be acted upon by the Defendants, and led the Defendants to believe that Defendants could act as they did.  The Defendants were ignorant of true intent of Warner/Chappell and Plaintiffs, and Defendants relied upon Plaintiffs' and Warner/Chappell's representations to their detriment.

26.  Plaintiffs knew that Thomas and Legler were going to do with their film those acts which Plaintiffs now claim infringe.  Plaintiffs intended that their conduct gave Thomas and Legler the justifiable belief that they could rely on Plaintiffs' conduct.  Thomas and Legler were ignorant of the true facts and acted in detrimental reliance on Plaintiffs' conduct.

27.  Defendants spent years preparing the film based upon repeated assurances from Plaintiffs and Warner/Chappell that they supported the project.

28.  Kramer expressly represented to Rebecca Derminer at a dinner in his house in August 2003 that he would do nothing to interfere with the release of the film.

29.  Plaintiffs are estopped to assert any claims against any Defendant.  This is in part because of Plaintiffs' express representations to Defendants that they would not block the Film, upon which the Defendants justifiably relied to their detriment.

30.  Much of this case rests upon the credibility of witnesses, and the Court finds that Thomas and Legler were far more credible than Kramer on key issues concerning alleged promises, representations and commitments.

31.  Defendants were first-time filmmakers who spent eight years of their lives trying to create a documentary film that would be historically truthful, a documentary that would celebrate the talent and creativity of the MC5 band, a documentary that would say something about the 60's, and would say something about the present.  They succeeded, and the film merits wide distribution for the enjoyment and edification of the masses.

CONCLUSIONS OF LAW

33.  The Court concludes that there is insufficient factual basis to establish that a contract was formed that any of the Plaintiffs could enforce.  Contract terms were never certain, and there was no meeting of the minds.  The burden of proof on any contract claim was not met by any of the Plaintiffs.

34.  The Court concludes that there is insufficient factual basis to establish any claim for quantum meruit.  The burden of proof on any quantum meruit claim was not met by any of the Plaintiffs.

35.  The Court concludes that there is insufficient factual basis to establish any claim for fraud.  The burden of proof on any fraud claim was not met by any of the Plaintiffs.

36.  The Court concludes that there is insufficient factual basis to establish any claim against any Defendant.  The burden of proof on any claim was not met by any of the Plaintiffs.

37.  The Court concludes that Plaintiffs are estopped to assert any claims against any Defendant.  The burden of proof on the estoppel defense was met by the Defendants.

38.  The Court concludes that there is insufficient factual basis to establish any damage to any of the Plaintiffs caused by any of the Defendants.  The burden of proof on the issue of causation and damages was not met by any of the Plaintiffs.

39.  The Court concludes that the judgment in this case shall not affect any rights concerning any companion soundtrack for the Film.

40.  The Court concludes that judgment must be entered for the Defendants on all claims.

41.  The Court concludes that Defendants are the prevailing parties.

IT IS SO ORDERED.

DATED:  March 31, 2007

Andrew J. Guilford

United States District Judge

------------------------------------------------------------------------------ Mc5inbuffalo

>>  Whatever the legalities surrounding the A True Testimonial, the legacy of this revolutionary band should be a higher priority for all involved than profit potential and dueling lawsuits. For all the enmity, entrenchment and legal maneuverings of rival camps, music so extraordinary that it transformed the lives of all who experienced it demands the release of a documentary that does the MC5 justice. Few bands have ever seen so much go so wrong so quickly and have been so misunderstood in the process. A True Testimonial represents a belated opportunity to set things straight, put things right. The fans deserve it. So does the band. And so does the music.

from Kick Out The Jams by Don McLeese - (Continuum Books - 33 1/3 series)

------------------------------------------------------------------------------ CONTINUE TO: "MC5 - TRUE TESTIMONIAL" TIMELINE, PAGE ONE

RETURN TO: THE WITCH-HUNT OF FUTURE/NOW FILMS

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Comments

I hope to see the film now!

As a fan of the MC 5 I will be happy to view the film.
I would hope the proceeds find their way to the filmakers, the remaining band members & the surviving family members.

Kick out the jams in memory of Brother Rob & Sonic Smith.

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