Last name
First name
search

Trial Tips: Behind the Music
A sound producer tries to claim credit for The White Stripes' first two albums.

By Susan Hansen
IP Law & Business/October 2006

Reprints & Permissions

James Diamond v. John Gillis (a/k/a Jack White), Megan White, The White Stripes, and Third Man Records, Inc.

Type of Case: Dispute over copyright ownership of the first two White Stripes records.

Win: The White Stripes

At Stake: If Diamond had prevailed, he would have been entitled to share copyright ownership and one-third of the past and future royalties on the two albums--worth at least $2 million.

Lessons Learned: An outsize trial exhibit can help drive home evidence; don't be afraid to let unconventional witnesses be themselves.

Proskauer Rose partner Bert Deixler wasn't sure how jurors would react to his rock star client Jack White this past June--especially when the White Stripes lead singer showed up for his copyright ownership battle in federal district court in eastern Michigan sporting a black pinstripe suit, a black shirt and tie, and a black bowler hat with a bright red feather sticking out. "There's an extra tension in trials with celebrities," says Deixler, a partner in Proskauer Rose's Los Angeles office, who has also represented rockers Marilyn Manson, Tom Petty, and Axl Rose. "Typically, either an artist will bond with a jury or repulse them."

Luckily for Deixler, the jury didn't seem to mind White's getup. As lead defense counsel, Deixler had to fend off claims that White and bandmate Meg White had cheated former sound engineer Jim Diamond out of copyright credits and royalties for the first two White Stripes albums--the White Stripes, released in 1999, and De Stijl, which came out the following year. Diamond filed suit against the pair in 2004, claiming that his work as a sound mixer and coproducer entitled him to share copyright co-ownership and past and future royalties--worth at least $2 million.

Diamond's lead lawyer, Anthony DeLuca of Grosse Pointe, Michigan, kicked off his case by pointing out that his client's Ghetto Recorders studio had been a huge force in the Detroit music scene in the late 1990s and a key creator of the Detroit garage-rock sound that The White Stripes became known for. DeLuca prompted Diamond to explain how a sophisticated recording engineer can make drums boom like cannons or put reverberation in studio microphones to produce a bigger, more distinct sound.

Next, Diamond's team called Jack White as an adverse witness. Under questioning from plaintiffs cocounsel Stephen Wasinger, the White Stripes singer conceded that Diamond had played a significant role in mixing and recording the sounds for the group. Wasinger, a solo practitioner in Royal Oak, Michigan, also pointed out that Diamond actually received coproducer credit on the first album, which he claimed effectively made him a joint author of the work. And he prodded White to admit that musicians typically do not give away coproducer credit unless it is earned.

White Stripes lawyer Deixler undercut those points when he questioned Diamond and White. In his cross of Diamond, Deixler pointed out that the sound engineer had billed The White Stripes nearly $2,200 for his services. And that bill, which Deixler blew up into a three-foot-wide, six-foot-high freestanding trial exhibit, included no mention of any claim to copyright or royalty rights, he pointed out.

Deixler also questioned Diamond about his contributions to the two albums, forcing him to concede that he didn't write a single note or lyric or sing or play instruments on any of the songs. "The key was to contrast what Diamond did and what Jack did and show the difference between authorship and refinement," Deixler says. Deixler pointedly asked Diamond about awards he had received for his contributions to the music industry. "There was a long pause," recalls Deixler, who adds that Diamond finally responded by noting that he'd been mentioned in an article in a Detroit alternative weekly.

Deixler followed up on that point by posing the very same question once White took the witness stand. The singer replied that he and bandmate Meg White had received five Grammy awards for their work. "I wanted to portray him as a unique talent," says Deixler. He also asked White to describe the origins of his second album, prompting the singer to riff on the inspiration he drew from De Stijl, an early-twentieth-century Dutch art movement known for using basic colors and shapes. "It was riveting," recalls Deixler. "There was no doubt about who the real artist in the room was."

The defense side called just two of its own witnesses--The White Stripes cofounder Meg White and musician Johnny Wirick, who played slide guitar on the group's first album. Both had their quirks, recalls Deixler, noting that Wirick was wearing an iridescent green suit and wacky sneakers, and that Meg White was so petrified of public speaking that her testimony was barely audible. Still, both testified that at recording sessions it was Jack White (and not Jim Diamond) who instructed them to play slower or faster or louder, or try another take. "Jack had artistic control," says Deixler. "Jim Diamond was a low-level technician."

After four days of testimony, the eight-member jury took just 20 minutes to deliver its verdict, rejecting Diamond's claims.

DeLuca, Diamond's lawyer, has already filed a motion asking for a new trial. "We think the verdict is grossly against the weight of the evidence," he says. But in late August, federal district court judge Avern Cohn denied that motion. "Plaintiff was not entitled to his case, and is not entitled to a second chance with a new jury," wrote Cohn. DeLuca is noncommittal about whether he will pursue an appeal. "I can't comment on that," he says.


Copyright © 2006 ALM Properties Inc. All rights reserved.