The Autumn of Our Discontent (Part 1)
As an artist and muse, Adam Lambert inspires us in ways that we rarely encounter in life. We treasure that. We also treasure the fan community and the wonderful friends we have made through our shared obsession.
So it was of more than passing concern to us when the release of Adam’s pre-Idol recordings on the “Beg for Mercy” CD ignited a firestorm, one that has blown through our community with incredible destructive force.
As we always do in such situations, we go all left-brain. We investigate and analyze.
Before we embark on our analysis, we’d like to explain our motives. We are NOT interested in “promoting” BFM. What concerns us is the truth, and supporting Adam in an informed way. We are also concerned by the rifts that have torn up this fandom. We are dismayed to see words like “betrayal” tossed around. We grieve for the fans come weeping to us about verbal abuse they’ve suffered. We despair at the chill that has spread among fans who are afraid to speak up. We don’t think anyone in this fandom, of all places, should fear to speak their truth.
We are also deeply disturbed about the rush to judgment, based on speculation and rumors, regarding Monte Pittman’s role. Our investigations to date lead us to surmise that the release of “Beg for Mercy” was set in motion years ago, the consequence of events that were beyond Monte’s control.
How did we arrive at this assessment? The release of Colwel Platinum’s lawsuit was highly informative (download pdf here). We have pieced together a narrative out of the available facts and our own knowledge and experiences. We are not lawyers, but we have dealt with many publishing, recording and intellectual property contracts in conducting our business.
Our focus here is on the legalities of the CD release, not the ethics of Colwel Platinum’s marketing tactics, or how we feel about Adam. We feel the marketing of BFM as Adam’s “new album” was deceptive and exploitive. We are offended by that, but the ethical issues will have little bearing on the legal dispute.
We have observed much misinformation, hearsay and rumor being circulated, which have inflamed emotions and impaired clear thinking. There is a world outside of our Adam terrarium — a world of lawyers, courts, corporations and media — that will be observing this dispute. Fans need to be equipped with facts, not just passion.
So, here are the known facts, the best we can determine from available information:
1) In February of 2008, Adam entered into an artist services agreement with Welsford Music Productions to record the songs now on “Beg for Mercy”. The language of the agreement gives Welsford extensive rights to exploit the recordings “throughout the universe, in perpetuity.” Under the agreement, Adam also granted Welsford the right to use his “name, nickname(s) and biography” in the marketing of the recordings. While Monte’s contract has not been released, we feel it is reasonable to assume that his was very similar. Here are the relevant passages:
2) The artist services agreement governs Adam’s and Monte’s roles as musical performers on the album. In addition, Adam and Monte are songwriters on the album. As such, they signed publishing agreements that grant Welsford a license to their copyrights in exchange for a share of the royalties. The language states clearly that the copyright license cannot be rescinded by the songwriter in the event of a breach or alleged breach of the agreement by the publisher. Under this publishing agreement, both Adam and Monte will earn royalties.
3) Adam went on American Idol in early 2009 and made it to the finale in May of 2009.
4) In June 2009, Adam signed a recording contract with RCA.
5) On June 23, 2009, Adam rescinded the agreement with Welsford due to “an undisputed failure to pay the contractual consideration.” This may refer to a payment that Adam thought he was owed at the time of the recordings, or to a claim that he was not paid at the prevailing union rate. (We’re surmising this based on Colwel’s statement asserting that under California law, Adam did not fall into the classification of artist who would need to be paid at union scale.)
6) Sometime in the June 2009 timeframe, Welsford tried to release the recordings (now on BFM). Welsford then withdrew the release, which Rolling Stone reported on. The takedown order asserts that the rescission of Adam’s agreements was lawfully confirmed on July 8, 2009.
7) Fast forward to the fall of 2011. Colwel Platinum (another Welsford company which acquired all rights and interests in BFM) announced the release of the album.
8 ) Monte posted a statement on his website asserting he had no control over or involvement in the release. He noted that Adam will earn royalties from the album. These statements are consistent with the language of the artist services and publishing agreements.
9) Mid-October 2011, Adam’s lawyers sent Amazon a takedown notice, stating that the recordings were “demos” and not intended for release. Here’s the text of their complaint:
10) Adam’s takedown notice triggers Colwel’s lawsuit. Colwel alleges a violation of copyright, that is, of Colwel’s right to exploit the license it had acquired to Adam’s and Monte’s songs under its artist services and publishing agreements in 2008. Colwel’s complaint states that Adam and his agents made misrepresentations to Amazon.com in its takedown notice:
11) Shortly after the lawsuit was filed, BFM was re-listed on Amazon.
12) November 21, 2011, BFM was released in stores. It now bears a sticker saying the songs were co-written by Adam and Monte. (We wish the sticker had clearly stated that these are pre-Idol recordings.)
13) In private correspondence, Monte’s representative has unequivocally stated that Monte is not an investor or part-owner in Colwel Platinum, and that his contracts with the label are similar to Adam’s.
14) The songs on BFM are not Citizen Vein songs. Citizen Vein performed some of them, but the group disbanded before the recordings were made. The songs on BFM were collaborations between Adam and Monte.
At this juncture, we have the following unanswered questions:
- Adam has stated that the recordings were ‘demos’ that were never intended to be released. This claim seems inconsistent with the artist services agreement, which does not restrict Wilshire’s use of the recordings. Furthermore, Wilshire paid Adam, then an unknown artist, for his work. Most artists have to pay for the use of a studio. On what basis did Adam understand these to be demos?
- Did Adam legally rescind his original contract with Wilshire in 2009? Adam makes his claim on the grounds that Wilshire failed to pay him for his work. Wilshire says it compensated him. Financial records should establish the facts. Whether he should have been paid at union scale may be one of the issues for the court to determine in deciding whether Adam’s contract with Wilshire is valid.
- On July 8, 2009, did Wilshire agree to rescind the contract and to not release the recordings unless they obtained Adam’s permission?
- If Wilshire agreed to the rescission at that time, will the court uphold it even if the reasons stated for rescinding the agreement are found to be invalid?
We speculate that in June of 2009, Adam needed to find a way to rescind the agreement with Wilshire in order to clear the path to signing with RCA. We do not know whether Monte was told about the rescission and had agreed to it, but Adam’s move to block the release did not result in a conflict with Monte at that time. We don’t know why the issue then went away until 2011; perhaps it took Wilshire’s legal counsel a couple of years to find grounds for challenging the rescission. Colwel (to which Wilshire had transferred the rights) then decided to go forward with releasing the album this fall.
At this point, Adam and Monte would have found themselves in starkly different positions. Adam found it necessary to oppose the release. Possible reasons include protecting his current artistic image, removing a competing “second album” from the market, and safeguarding his contractual relationship with RCA (if that would be jeopardized by having a conflicting label contract with Welsford).
Monte, on the other hand, may have concluded that he did not have legal grounds to prevent Colwel from releasing BFM. Challenging Colwel would have put him at risk of a lawsuit for breach of contract. Any action to impede the sale of BFM would have created a major liability exposure ($200,000 plus damages).
There is no need to cast Monte as a Judas in order for the events to have played out exactly as they have. Nonetheless, a narrative has taken hold in the fandom that Monte plotted to “betray Adam for money.” According to this narrative, in 2009 Adam signed over his interest in the recordings to Monte, and that Monte later ‘sold out’ Adam and conspired with Welsford to produce and market BFM”. The alleged motive? Money. And because songwriter royalties are relatively modest, the hypothesis was bolstered by the axiom that Monte must have a larger stake, namely, as an investor in the project.
We question this narrative because it requires several new assumptions that have no basis in evidence: 1) that Monte rescinded his 2009 contracts, thereby regaining control over the material; 2) that he acquired Adam’s rights to the songs; 3) that he became an investor in Colwel; and 4) that his ownership of copyright on the songs must mean he retains control over the release of the recordings. The first two assertions are contradicted by Colwel’s lawsuit, which points to the original 2008 agreement as governing their rights to the material. We have seen no documentation that Monte is an investor in Colwel. The fourth assertion ignores the grant of copyright license in 2008.
It certainly appears that these events have created a rift in Adam’s friendship with Monte. But again, this fact alone proves nothing with regard to Monte’s culpability. It’s plausible that Adam is indeed upset that Monte considers the original contracts to be valid, as this undermines his own position. It’s also plausible that his lawyers have forbidden him from having any contact or communication while the case is in litigation.
When we first wrote about BFM, we were furious at Welsford. But as we delved into the facts, our indignation began to waver. Whether his label fairly and legally owns the right to sell BFM is sufficiently in dispute that it has spawned a lawsuit. We are still lacking vital information from Welsford and Adam.
The evidence we have so far, however, is insufficient to prove that Monte is guilty of masterminding the release of BFM. We would go so far as to say that reasonable people could conclude that he is unlikely to have done so. What we see instead is a tragic confluence of events set in motion three years ago by the dreams of two young, hugely talented friends who were too poor to afford a good attorney.
There are still gaps in this story. We invite readers to send us any additional documented facts that can shed further light.