Friday, December 02, 2011

#288: Lick It Up

As a kid back in the 1500s I remember reading how bands were formed.  I remember reading how John Paul Jones phoned Jimmy Page and asked him if he was forming a band, and if so, did he need a bass player?  Page said, sure, and mentioned how he was checking out a drummer and singer that weekend and would get back to him.  A rehearsal was set up and Led Zeppelin was formed.  Everyone got rich, famous and laid.  Queen simply formed itself; Kiss placed an ad in the Village Voice and got Ace Frehley as a result.  The Beatles were drawn together and bonded over a steady diet of violence, music, alcohol and drugs in Hamburg (where John Lennon would regularly berate his German audience, calling them “Fucking Nazis,” and Heiling Hitler from the stage during shows).  Bands were shored up on a foundation of mutual respect, if not outright friendship, the latter wasn’t always a requirement – as David Lee Roth once wrote about his fractious relationship with Eddie Van Halen, “I don’t have to like you in order to make beautiful music with you.”  Hell, the Everely Brothers, Don and Phil, haven’t spoken to each other for decades, and there’s always that great story about how Don once kneed Phil in the balls, on stage, and screamed, “That’s for fucking my wife!”  Or perhaps it was Phil who kneed Don, perhaps it never happened.  Either way, it’s a great story and perfectly illustrates the complexities of working with another.  Still, within the confines of such relationships, memorable music more than often happens, and there is that safety net of bouncing ideas off another person, which doesn’t always happen when you work alone.  Bowie once said, “The only thing wrong with being me is that I can’t break up and release a solo album.”

The original and still the best.
Along the way bands began to be formed by committee and no longer was it a simple matter of, “Hey man, wanna jam and form a band?”  Contracts became the name of the game, and as time passes the contracts became the norm.  The bigger a band became the more arduous the deal that was made.  The classic case is displayed below – Vinnie Vincent’s deal to enable him to join Kiss.  And before anyone says, “Well, it is Kiss after all,” consider these facts – the deal was struck in 1982.  In 1982 Kiss were dead in the water.  They’d lost one founding member in Peter Criss, sacked in 1980 due to substance abuse and a general attitude problem.  Although the band would always insist that Criss left to go solo, trust me, they fired his arse.  They then hooked up with a new drummer – the late, great Eric Carr – and made one of the worst selling albums they’d ever release in Music From The Elder.  Personally I like that album, and anyone who says that it’s the worst thing they ever did clearly hasn’t listened to the absolute pus that the band would release a few years later – Animalize and Asylum anyone?  As Winger or Cinderella albums they were foul, as Kiss albums they weren’t scraping the bottom of the barrel, they lifted the barrel, dug down deep into the shit below and found something past that.  The Elder wasn’t bad, songs like The Oath and I were born Kiss anthems that should be played in concert, but, as it didn’t sell, aren’t.  Sadly some people can’t differentiate between bad sales and bad music – just because something doesn’t sell it does not mean its bad, conversely just because something does sell, it does mean its good, otherwise we’d be living in a world of Mitch Miller and Liberace.  Jesus, even Milli Vanilli sold millions and I defy anyone to tell me the value in that crap.

Back to 1982.  Kiss were a joke, and not a very good one.  They’d appealed to the comic book pop culture youth of the 1970s, but those kids had grown up and left the band behind.  Guitarist, and frankly the soul of the band, Ace Frehley was spiralling down into a land of booze, drugs, guns and fast cars, ultimately realising that the longer he stayed in the band the unhappier he was and the more self-destructive he’d become which made him fear for his life.  Gene Simmons and Paul Stanley told acceded to his choice of standing out of the making of the next album, Creatures Of The Night.  Several guitarists were auditioned, including Robben Ford and Steve Ferris (who would later find fame as the guitarist for Mr Mister – yep, the guy who plays on Broken Wings is the same guy who plays that steaming guitar on the title song, Creatures of The Night – and I bet that’ll fuck with Pete The Stud’s head) along with Eddie Van Halen, not that it was ever going to happen.  Only one person fit the mould, Vinnie Vincent, who’d also written some songs for the album.  Vincent was duly hired after signing the contract shown below.  Ace Frehley quietly left the band and promptly smashed his car into a tree.

On the surface of things it was a marriage made in heaven.  Vincent could play guitar and, unlike Frehley, was more modern.  Not that’s anything wrong with Frehley – I still prefer him over anyone else the band has ever had and Vincent could write.  He sat down with Simmons and Stanley and co-wrote the bulk of the album, Lick It Up, which marked the first time that the band had appeared without make-up, a stance they’d continue until the lure of filthy lucre got too much.  Well, I should say without make-up for the bulk of the time mainly because in the mid 1980s Gene Simmons was wearing a combination of make-up and a wig that made him look all the world like Bea Arthur on stage and trust me, there is something wrong with that.  Instead of The Demon Gene Simmons became The Pansy and there he remained until 1991.

You could argue that Vincent got a good deal.  To start with he was placed on a salary which afforded him $2,000 per week – healthy cash in 1982.  His benefits included travel expense while on tour, which afforded him first class travel and a healthy per diem.  He was also gifted at least three weeks paid vacation per year.  Prior to joining Kiss his main claim to fame was working with Dan Hartman and appearing, sans make-up, in the video for the disco song Instant Replay (I’m not making this up – check for yourself, there he is, larger than life), and had stated that he’d earned approximately $50,000 for his previous ten years as a professional musician.  It looked good, Vincent would make more than that in six months.  But the contract, when you consider it, was a one-sided stacked deck.  When the contract was boiled down it came to this: among other things, Vincent was employed as an employee-for-hire as a lead guitarist, that he would render recording services and perform on tour, and that he would participate in recording and promotional functions on behalf of and at the direction of KISS in exchange for a weekly salary and other benefits. In return the band would provide Vincent with a character, costumes and make-up design, but that likeness, “shall remain the sole property of KISS, together with all representations thereof including, inter alia, photographs, motion picture and television usage and material publicly disseminated or sold, free from any claim, direct or indirect, by CUSANO or his heirs or assigns.”  It got worse, far worse.  If Vincent left the band then he could not state that he was a former member of the band, or that he was an employee of Kiss, couldn’t use the make-up and could not perform any of the music that he co-wrote while in the band.  Ever.  He could not perform with anyone else while in Kiss (something that rankled Eric Carr who wanted to drum on Ace Frehley’s first proper solo album).  And that wasn’t the end of it.

Vinnie Vincent no longer owned his own music.  Upon signing the contract he handed over any rights to his own compositions, either solo or jointly.  The relevant clauses stated that;
“Prior Compositions” - all musical compositions (other than those musical compositions embodied on KISS's ‘Creatures of the Night’ album which are subject to that certain co-publishing agreement dated June 7th, 1982) written or co-written by CUSANO prior to commencement of the Employment Term.” This clause affected  everything that he’d written before joining the band that hadn’t been recorded and meant that Kiss now owned it all.  Upon signing the contract Vincent assigned all Right, Title and Interest to each and every prior composition to Kiss.  Easy as that.  If Kiss recorded the song then they’d own 100% of that song.  If anyone else recorded the song by  September 1983 then Vincent would own the song, but, by virtue of the contract, he wasn’t able to shop his music around.  After that date, no matter what, Vincent owned 50% and Kiss owned the other 50%, no matter who recorded the song, other than, of course, Kiss, who would own 100% of the song if they recorded it.

"Term Compositions" - all musical compositions written or co-written by CUSANO during the Employment Term and/or the Production Term.”  This would cover anything written while he was in the band and under that clause Kiss owned it all.  If they recorded anything after September 1984 then Vincent would be allowed to have 50%, otherwise suck it up.  He would be entitled to royalties, but, in a great twist, Vincent had to appoint Kiss as his, “…true and lawful attorney-in-fact to execute, verify, acknowledge and deliver any and all instruments or documents which CUSANO shall fail or refuse to execute, verify, acknowledge or deliver to effectuate the intent of this paragraph.”  You have to love that.

"Another Artist" - a recording artist other than KISS or CUSANO in his capacity as a solo recording artist.”  This covered anything that Vincent wrote that anyone else might want to record, but before anyone could hear it he’d have to submit the demo to Kiss, who, if they decided they liked it, could claim it, not record it and there it’d sit, forever, and forever owned by Kiss.  Mind you, as stated earlier, he could not work or write with anyone without the express consent of Kiss, and you can count on it that consent wouldn’t be forthcoming.  Was it bad?  Bet on it.  It got worse.  “Publisher shall have the right to use the name, photograph and likeness of Writer and biographical material concerning Writer, for advertising, purposes of trade and otherwise without restriction in connection of the Composition.”  Vincent no longer owned his own life.

The royalties weren’t anything amazing.  For each song published Vincent got seven cents.  For each retail sale he got 5%, after taxes, tariffs, and discounts – the usual crap.  That covered only the USA and Canada, for the rest of the world he got 50% of any net sums earned and received – which would be 50% of fuck all.  Net means after all of the expenses have been taken out, which generally leaves a debt.  If a song book was released he’d get $1.00 per song for that, provided that the publisher paid up.  If not, bad luck.  And, in a great clause, “Publisher shall not be required to pay royalties to Writer for public performance of the Composition. Writer shall receive royalties for public performances front the performing rights society with which Writer is or may, in the future, become affiliated.”  In fact there are more paragraphs detailing how Vincent was not to be paid than there are how he would be paid, if at all.  As it stood when Vincent filed for bankruptcy in the late 1980s the band offered him just over $1,500 for complete control over his Lick It Up contributions, despite being paid approximately $65,000 in royalties.  To put that into perspective, Sting reportedly earns $1,000USD a day for Every Breath You Take.  That’s right, $356,000USD+ per year, for one song.  Vincent earned $65,000USD for album that he wrote all but one song on, for a period that covered several years.  By 2009 Vincent still owed Kiss around $52,000 for his music.  That’s right, he OWED them money, not the other way around.  How?  Because he sold his publishing rights to Kiss for a one-off payment of $50,000.  He’ll still make a bit of cash from his song writing royalties, but the true money is in the publishing – just ask Michael Jackson (if you could) or Paul McCartney, both of whom made millions, if not billions, off the backs of other musicians, in Jackson’s case, it could be argued that he made more from the Beatles than both Lennon and McCartney combined.

Then moral of the story?  Not all offers are worth taking, not all contracts are worth signing, and I’m not the least bit surprised that Vincent has routinely sued Gene Simmons since the early 2000s, but, sadly, he has no chance at all of winning.


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