In a lawsuit filed in California last year, Journey guitarist Neal Schon alleged that bandmate Jonathan Cain had denied him access to the group’s corporate credit card. Cain alleged in a cross-complaint that Schon’s prior use of the card to fund a lifestyle befitting of a rock star created liquidity problems for the band. Will these rockers soon go their Separate Ways?
Disputes over finances are not uncommon in closely held businesses, but they are more intriguing when the business is rock and roll.
There are many great books and movies about the exploits of legendary rock bands. For the real lowdown, however, it is useful to leave the stage and head for a different kind of venue – the courtroom. Pleadings filed in lawsuits and legal decisions issued by judges are great sources of information about the inner workings of rock bands. These publicly available documents pull back the curtain on some of the drama and dysfunction that have kept music fans hooked for decades.
There are numerous genres of rock band litigation. Many lawsuits involve music plagiarism, for example, where one band accuses another of stealing its musical ideas. This article focuses on lawsuits that involve the antics of the musicians themselves and lay bare the emotional tension and petty fights for which many legendary bands are known. We will leave the legal analysis for another day and take a look instead at what lawsuit pleadings and judicial decisions tell us about life in a rock and roll band.
Don’t Stop Believin’
The pending litigation involving Journey focuses on the spending habits of its two long-time members and their respective access to financial records in order to assess the damage. Cain alleges, for example, that after a recent tour ended in Hawaii, Schon stayed an extra week in a hotel suite that cost $6,000 a night and charged more than $100,000 in expenses to the band’s AMEX account. Schon alleges that Cain cut off his access to financial records and obstructed Schon from viewing expenses incurred by Cain and his touring party. Rest assured, they are not roughing it on a tour bus like their early days. A recent tour budget allocated $1,500 per night for hotel rooms for Schon and Cain.
The Journey litigation also provides a glimpse into the way the band is organized from a business perspective. According to Schon’s complaint, he and Cain are the sole members and managers of an entity known as Nomota LLC, through which Journey operates. While there have been changes to the membership over the years, Schon and Cain currently are the 50% co-owners and share the profits. Presumably, other current band members and crew are employees of Nomota. Schon and Cain’s status as the co-owners of the company was the result of a prior lawsuit involving two other members of the band, Ross Valory and Steve Smith, who were ousted.
The members of Journey appear to have spent as much time in the courtroom as on stage together over the last few decades. Here’s hoping that the Lights do not go out for good.
Not so Sweet Emotion
When it comes to exposing the ups and downs of Aerosmith, VH1 television show Behind the Music pales in comparison to a 2020 decision by a Massachusetts Superior Court judge denying drummer Joey Kramer’s motion for a preliminary injunction.
At the center of the dispute was Kramer’s desire to resume his role as the band’s drummer after a hiatus, particularly for a couple of prestigious performances. In January 2020, Kramer filed suit alleging breach of contract against the closely held corporations through which the band conducts business. He also sought an injunction requiring the band to allow him to perform at the Grammy Awards.
The court’s decision explains that the five members of Aerosmith are each one-fifth owners of stock and voting rights in the band’s corporations. The relationship between the band members is governed by an employment agreement, which provides that the band members are employees of the corporations. The employment agreement allows the corporations to replace a band member who is temporarily incapacitated, but states that no member can be terminated “without cause.” Nothing in the agreement addresses a member’s return to the band following a temporary incapacity – not an uncommon occurrence for Aerosmith. Kramer alleged that band members always had been allowed to rejoin the band without having to audition or demonstrate fitness for the job when returning from an absence. He was not afforded such a courtesy.
In the Spring of 2019, Kramer was unable to perform several shows with Aerosmith and a temporary drummer filled in. When Kramer was ready to get Back in the Saddle, he was told by the band’s manager that the band needed evidence that he had the stamina and timing to return to the stage. The band demanded that Kramer perform a series of solo rehearsals, after which the other members would listen to recordings and decide whether to allow him to return. Kramer protested and did not return to the band for the remainder of 2019.
In January, 2020, Aerosmith was invited to play at the MusiCares Gala and the Grammy Awards. Because he desired to play these “once in a career” gigs, Kramer sent recordings of himself playing the drums to the band. The band convened a conference call to discuss and vote on whether Kramer would be allowed to return. The band members voted 4-1 against Kramer’s return.
Kramer then filed suit and sought injunctive relief to require Aerosmith to allow him to perform at the MusicCares Gala and the Grammys. The other band members argued in response that they did not have enough time to rehearse with Kramer in order to successfully play together at these events – a curious argument given that the band has been playing together since 1970. Kramer flew to Los Angeles hoping to participate in the band’s rehearsals but was turned away by security. As a consolation, the other band members invited him to participate in photo sessions.
The court ultimately denied Kramer’s motion for a preliminary injunction on the basis that he had not shown a likelihood of success on his claim that the other members of Aerosmith breached an express provision of their employment agreement. Within a few months of filing suit, however, Kramer was back on stage with Aerosmith and the Train Kept a Rollin’.
No Peace of Mind
Sometimes intra-band squabbles continue long after the music stops. Such is the case with the band Boston.
The following tale is spun from pleadings in a 2013 federal court lawsuit filed by founding member Tom Scholz against one-time bandmate Barry Goudreau.
Goudreau was a guitarist with Boston from 1976 to 1979. He played on Boston’s self-titled debut album, which is one of the most successful debut albums of all time. After Goudreau left the band, he and the remaining members executed a settlement agreement pursuant to which Goudreau would receive a one-fifth share of the band’s royalties for the band’s first two albums. The settlement agreement also stated that Goudreau could use the term “Formerly of Boston” with respect to future performances, but would have no interest, right, or title to the name “BOSTON.”
Simple enough? Not by rock star standards.
In promotional materials for bands he played in after Boston, Goudreau allegedly referred to himself as an “original member of Boston” and “Barry Goudreau Lead Guitarist Rock Legend from The Band Boston.” Scholz, the sole owner of the trademark “BOSTON,” filed suit alleging trademark infringement and breach of contract on the basis that Goudreau was exaggerating his involvement with the band, misleading the public, and violating the terms of the settlement agreement. Goudreau asserted various counterclaims and sought a declaratory judgment that his use of language other than “Formerly of Boston” did not violate Scholz’s trademark rights.
After pre-trial motion practice that was the legal equivalent of a four-hour concert, a jury found that Goudreau did not infringe on Scholz’s trademark. Jurors did not see a difference between Goudreau’s use of the term “original” instead of “former” to describe his role in the band, and concluded that any misuse of the BOSTON trademark was unlikely to cause confusion about the status of the band in the mind of the public. A federal appeals court affirmed the judgment.
Life In the Fast Lane
In addition to being talented and sometimes iconic, rock stars are also litigious. The cases discussed here are just an introduction. The legal battles of bands like the Eagles, Pink Floyd, and Fleetwood Mac are the stuff of rock legend. Even the Beatles, the most successful band in history, spent nearly as much time in the courtroom as they did in the recording studio.
The takeaway, from this lawyer’s perspective, is that to assemble a band and keep it together for many years is a difficult task. But as these cases show, squabbles between the members of rock bands are not that different than disputes between family members or business partners. They may just be a little more interesting.
Michael J. Rossi is an amateur guitarist and a partner at Conn, Kavanaugh, Rosenthal, Peisch and Ford in Boston. He practices in the area of civil litigation with an emphasis on professional liability, commercial litigation, and employment litigation.
He can be reached at mrossi@connkavanaugh.com
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