Although his legal options have been exhausted, and he will be forced to pay nearly $1 million from his own pocket, Michael Bolton is hardly conceding defeat in his effort to call his 1991 top-5 pop
Although his legal options have been exhausted, and he will be forced to pay nearly $1 million from his own pocket, Michael Bolton is hardly conceding defeat in his effort to call his 1991 top-5 pop hit "Love Is A Wonderful Thing" his own.
For the past nine years, Bolton, co-writer Andrew Goldmark, and Sony Music Publishing have locked horns with the Isley Brothers, who say that Bolton and Goldmark composition plagiarized their little-known 1966 song of the same name.
Bolton's court fight with the Isley Brothers came to a close on Jan. 22 when the U.S. Supreme Court refused to hear Bolton's appeal of a May 2000 decision by the Ninth Circuit Court Of Appeals in San Francisco.
The San Francisco court upheld a 1994 lower court ruling that ordered the artist, Goldmark, and Sony Publishing to turn over $5.2 million in profits from the sales of Bolton's version of the song to the Isley Brothers. The jury had ruled the pair plagiarized the Isley Brothers song of the same name, after deciding the songs shared a number of the same elements. The trial jury found that there were five instances where Bolton and Goldmark lifted from the original Isley Brothers song.
The Isley Brothers, through a representative, declined to comment on the High Court's decision.
Bolton's attorneys, including Harvard University law professor Alan Dershowitz, had asked the Supreme Court to reject the findings, arguing a national standard should be created to help guide artists and the courts as to what classifies as copyright infringement. The Recording Industry Association Of America (RIAA) agreed, and filed a brief with the Supreme Court supporting Bolton in his appeal. The RIAA declined to comment on the Court's decision not to hear the case.
Under the Ninth Circuit ruling, the Isleys are to be paid $4.2 million from Sony Music; $932,924 from Bolton; $220,785 from Goldmark; and the balance from Bolton and Goldmark's music publishing company. The original jury found that 66% of the song's profits resulted from copyright-infringing elements and that 28% of the profits of the album "Time, Love & Tenderness" were derived from the track, which won Bolton and Goldmark a Grammy.
For Bolton, who is in the studio recording his first album under a new contract with Jive Records, his mantra has become "move on." Here he speaks with Billboard:
<B>What was your reaction when you heard that the Supreme Court would not hear your appeal?</B>
I didn't expect them to hear this case. I would have been overwhelmed with some sort of excitement even at the possibility of seeing some justice in this case.
The fact that the appellate court gave such a poor level of attention to reviewing the case resulted in a loss of faith in the justice system. I had no idea that they were that incompetent or that disinterested, but when we got to the Ninth Circuit after two years of painstaking preparing, the three judges that heard the case were not aware of the details of the case. I was shocked when one of the judges asked if the song was on one of their albums. She didn't even realize that's why we were there, and the case went to trial. The Isley song was never on an album in their 40 years of existence. It came out a year after "Love Is A Wonderful Thing" came out.
<B>Couldn't the song have been performed live?</B>
According to them it was, but they were not able to produce concert tapes showing that it was performed live. It was a recurring nightmare that you couldn't believe a judge would allow to continue with a lack of evidence of access and dissemination which every copyright infringement case that goes to trial is based on. We deposed band members who never, ever remember the song being performed live and never remember seeing it on any of their song lists when they toured.
In this case, you have a song that never charted on The Billboard Hot 100, it never charted on the R&B charts where the Isley Brothers had tremendous amounts of airplay, it never received on citing on the BMI or ASCAP recordings tracking airplay, there was not one receipt for the supposedly commercially-released single -- there was none of the usual evidence that shows up where the plaintiff's burden is to prove a reasonable amount of access. This was a case of, if you were a record collector you couldn't find that record. You would have to search high and low, you would have to find one of those promotional copies of the single.
<B>And yet the case went to trial.</B>
We were certain the judge wouldn't allow it go to trial because it was lacking all of the documentary evidence that shows a song was played in an area where people lived. Judge [Kristina] Beard was not a music business-exposed judge, but I thought that at least it was her responsibility to do her due diligence and become aware of what case she was presiding over, but I was wrong and it was maddening. So we were put in a position of proving that the song couldn't have been heard even by people that wanted to hear it. This case wasn't about how popular the Isley Brothers were, but about whether this song was played enough and if people could have heard it -- that's what access is all about.
At one point during the trial, they just dropped on us that it was played on a local TV show that aired in [my hometown] in Connecticut, so we brought in a year's supply of TV Guides which showed the show did exist but not once did it show the Isley Brothers appeared on the show. It meant nothing to the jury. The jury was not interested in the evidence.
<B>What about the argument of subconscience copying, which by and large means that you must have heard it and used it years later?</B>
Andy and I submitted a tape of us creating the song and you can hear note-for-note the creation of the song. There are also 151 songs copyrighted "Love Is A Wonderful Thing," and that's not including songs called "Love Is A Beautiful Thing," etcetera. So, we had an opportunity to prove original, independent creation but the jury did not care about that -- it was maddening.
<B>Were you a big fan of Isley Brothers?</B>
That is so far from the truth. This is another piece of the evidence. Ronald Isley changed his testimony three times to the point where the last time at the trial he said, "When I met Michael Bolton he said, 'I'm a big fan. I've got all your stuff." I know why he said that -- because he knew he did not have evidence that anybody could have heard the song, so the strongest statement that he could make at that time was that I said, "I've got all your stuff."
Not only did I not have all of his stuff, I did not have any Isley Brothers records. I was not an Isley Brothers fan. Nothing to take away from Ronald Isley's singing, but I was a Marvin Gaye, Otis Redding, Ray Charles, Smokey Robinson fan. So we brought forward dozens of interviews where people asked me what my roots were and who my aspiring singers were, and each and everyone of them listed the same singers, each and every time. You never saw a mention of the Isley Brothers as being influential or as being a group or artist that I was fan of. I was not a fan of theirs, I am not a fan of theirs -- my opinion of them at this point is irrelevant.
<B>You sound very frustrated...</B>
It's been hell, and at one point when the jury verdict came in, it nearly ruined my life because I felt so much like a child had been pulled from me. When you know you created something because you created it word-for-word, and every turn, nuance, and vocal performance. Then you co-produce the record and you're there for every horn overdub and you're building this creation that's going to have a life of its own and someone comes along and says, 'I'm taking it from you,' they end up taking a big piece of time, love, and tenderness away from you. It's been a devastating time. It's been an enraging time. I have no faith in the justice system. Believe not in the justice system -- when it fails, innocent people are injured horrifically and guilty people are set free.
<B>Will you still perform the song?</B>
I perform it live. It will always be mine, in my heart and in Andy's. It will always be my song. It's a song I created with Andy Goldmark word-for-word, note-for-note, I'm proud of the song and it's part of me. It's a travesty that I'll have to learn to live with, as I'm sure [Ronald] Isley will have to live with, to his grave, the fact that his testimony changed several times in order for him to be able to get some money.
<B>As you are back in the studio recording your first new album in years, do you think this case could cast a negative light on your public persona?</B>
This is the third time this information has come out. We lost the first case and I was in shock. It came when I was promoting my greatest hits album in Europe, which still sold approximately 6 million copies. It distracted me, but it didn't stop me from the work I was going to do and the record was very successful, and I think that people know that the more successful you are, the more lawsuits get thrown at you, the more a target you are.
I'm not sure of the impact, but I'm hoping that if people are interested enough they'll find out what a travesty it was, what a horror it's been for close to eight years. It's more of a psychological hurdle for me because my integrity is important for me, but if you knew Andy Goldmark and you know the two of us, we wouldn't take the wrong change from a cashier, let alone fight a case for a song that might not be ours. We were so 100% involved in the independent creation of this song, to have it torn from you forever and then to be fined for it, is an atrocity that is psychologically a very tough pill to swallow. That's the work that I'm going have to do for the next year or so.
I'd like to just put it behind me and say worse things happen to people and there's too much to be grateful for to let this stop the momentum of creation and everything I've always loved about music. When you're in front of your audience there's a whole different element. And if there's anything about it being over, is I can let go of the delusion that justice will be done.