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Looking at the A Day to Remember Court Case; What Does...

Posted by: Jason Tate (10/07/13)
You either care about the current A Day to Remember vs Victory Records court case or you don't, and if you do, odds are you are a little confused about just what the fuck is going on. I'm going to be speaking with the band shortly for a longer piece about the new album and the ongoing legal stuff, and we've already read the statements from Victory. After pouring over countless court documents, talking to a variety of legal sources, and caring way too much about this (yeah, this stuff fascinates me, in another life, I wanted to argue in a courtroom instead of a message board all day) -- I've begun piecing together what we currently know.

First, if you just care about the music, here's the deal: A Day To Remember can, and will, self-release their new album Common Courtesy on October 8th. This will be a digital only release, to start with, and only available through the band's webstore. If you want the album, that's how you can get. The pre-order downloads are going to start going out in just a few hours. In a month or so the band will be releasing a physical version that will include three extra songs and some other cool stuff. Now, onto the legal stuff ...

This case began when A Day To Remember sued Victory Records. The original complaint was that A Day To Remember had not received proper royalties from their time on the label and that they are under no further legal obligation to release any records with Victory because they had already met the five album requirement. This five album requirement comes from the band's "deal memo" (which is their contract) with Victory Records. The three page "deal memo" states A Day To Remember have to do five albums -- conditioned on sales figures, with corresponding royalty rates attached to each. It defines an album as a "reproduction, transmission, or communication of recordings distributed, no or hereafter known, manufactured transmitted or communicated in any format." Basically, that means that they can sell albums on vinyl, cassette, CD, iTunes or any other type of playback technology that becomes available during the "Term." Tony Brummel (founder and CEO of Victory Records), in a separate declaration, stated that there was an accounting error at some point (which has since been corrected) and proper royalties have been paid. And, Victory's argument, is that they believe the band has only released 3 of 5 of the committed albums. After looking over the documents and speaking with a few legal sources, this is what the crux of any legal argument made by both sides is going to come down to: what counts as an "album" or not. Currently, this is the case that is ongoing -- the decision of what is going to count as an "album" has not yet been made and probably won't be made until next year. There are a variety of arguments being made on each side about why certain releases should count as an album and why others should not -- with the vagueness of the band's deal memo sitting at the heart of this decision.

That then brings us to the band's album: Common Courtesy. The band has recorded and is ready to release this album, believing they are no longer on Victory Records and knowing that it has been so long since they released new material, the band has decided to self-release the album online. When they made this announcement, Victory Records - believing that the band should still be under contract to them - contended that "ADTR is precluded from releasing the album because it has not yet satisfied its obligations under a recording contract" and filed an injunction to stop ADTR from selling this new album. A few days ago, the ruling on just this injunction was made. A judge ruled that A Day To Remember were allowed to self-release Common Courtesy and denied the injunction filed by Victory Records to prevent this release. This victory (heh) does not, however, give much of an insight into what the final court ruling will be. ADTR are definitely going to celebrate that they can get the music out to fans, but Victory can also find some silver lining in the findings of the court (as you can see they did via their lawyer's statement).

A lot of the speculation and discussion has been around the question: Does A Day to Remember still owe Victory two more albums? At this point that has not been decided by a court. You can read the band's original deal memo and decide for yourself which way you would lean, and personally I think it's a very vague definition of an "album." In fact, in all my viewing of contracts and recording deals over the years it's one of the most vague definitions I've ever seen. Usually albums are defined pretty expressly (e.g. "a record or multiple set having no less than forty (40) minutes of playing time, and which embodies at least ten (10) Masters of different original Compositions"), and I was pretty shocked to see how vague the language was in this case. Now, having read through the decision rendered a few days ago, we find that this judge also finds the term "album" to be very vague in the deal memo:

First, the definition in the Deal Memo itself is vague and may have more than one reasonable construction. Indeed, taking the definition literally, ADTR could fulfill its obligations under the Deal Memo by delivering to Victory five copies of the exact same collection of songs. This could hardly be what the parties intended when entering into the Deal Memo. Moreover, the broad definition urged by ADTR is inconsistent with other provisions in the Deal Memo, including but not limited to the provisions outlining the schedule of royalty payments, publishing advances, and recording advances by Victory to ADTR.


The judge goes on to write that that doesn't mean that Victory's definition of an "album" will prevail, but does point out it's not as cut and dry as ADTR would probably like it to be. This is where we come to the quote offered by Victory's lawyer, when Victory took some consolation in the statement that, "for the purpose of deciding this motion, it is sufficient for the Court to find that, as between the overly broad definition offered by ADTR and the narrow one offered by Victory, the record currently before the Court supports Victory’s construction at least as equally, if not more so, than that offered by ADTR." Which means, as of right now, Victory's definition of what an "album" means is supported by the court "at least as equally, if not more so" than ADTR's definition of an album. That's why Victory believes they will prevail in the final court proceedings.

Still with me?

So - after all that -- the judge ruled that A Day to Remember could self-release their new album for a variety of reasons, and stated in his opinion that:

As a pop band in a very competitive and fickle marketplace, it is likely that ADTR will experience a material erosion in popularity and fan support if it is prohibited from releasing a new record until the resolution of this case, which is likely many months away. [...] This will not only harm ADTR, but also would detrimentally impact Victory’s ability to benefit from ADTR’s continued popularity in the event that it prevails in this action. Accordingly, the Court concludes that the balancing of harms favors ADTR, particularly in light of the very slight margin by which Victory is likely to succeed on the merits of its claims.


The final part of all this is what happens next. That trial will occur next year. There are a variety of possibilities, but the best case for ADTR is that they'll be found to have released five albums on Victory and therefore have completed their contract. They will then be free to keep any of the revenue generated by Common Courtesy and sign to another label (or not) and continue on with their career. However, if Victory is successful in the trial, then they could possibly collect royalties from Common Courtesy, and "seek the lost profits from the sale of Common Courtesy based upon information gained from the sales of ADTR’s prior three Albums and the sales of Common Courtesy itself. Furthermore, in the event that Victory prevails in this action, it will undoubtedly seek to hold ADTR to its obligation to deliver two additional Albums to Victory pursuant to the terms of the Deal Memo."

At this point, that's what we know and we will have to wait until next year to see who ultimately prevails. In my opinion both sides are making calculated risks based upon their belief of how the trial will shake out ... but at least A Day to Remember fans will get new music sooner rather than later (and as a pop-punk fan, I was pleasantly surprised by this album). I've also spoken with the band and asked them what happens if they lose this case and what they will then do in the future -- more on their answers coming very soon. Again, just to reiterate, I'm not a lawyer and all the analysis is my own after talking to a variety of trusted legal sources. I encourage those interested to read all of the documents linked throughout this piece, they are all public record, to form your own opinions.

For more information on last week's decision: PropertyOfZack has a detailed look the judge's opinion.
    
 
Displaying posts 1 - 15 of 147.
03:33 PM on 10/07/13
#2
guitaristbrb
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Very nice post Jason should clear everything up for everyone I hope. You've heard the album I take it? What's your opinion on it?


I personally don't think they have done 5 albums but according to the contact it's not very clear on Victorys part and I can see ADTR coming out on top.
03:41 PM on 10/07/13
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Jason Tate
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Very nice post Jason should clear everything up for everyone I hope. You've heard the album I take it? What's your opinion on it?


I personally don't think they have done 5 albums but according to the contact it's not very clear on Victorys part and I can see ADTR coming out on top.
I have.

I was very pleasantly surprised (hey, if something can get me to turn off the new A Wilhelm Scream album I've been waiting like 6 years for, that's saying something). I really like the pop-punk parts of it and the melodies they used. There are some massive choruses here. I actually prefer those sections (even the more acousticy songs) to the breakdown/hardcoreish stuff. That's just me though, that's where my tastes lie. I think fans of the band's style are going to love the album ... it could very well go down as their best album, that would not surprise me at all.

"Best of Me" and "Life @ 11" are my early favorites. Only had time to spin it a couple times though, been finishing this article -- and have more coming soon -- so I've been crazy busy today. Hah.
03:42 PM on 10/07/13
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randys950
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still confusing...
why wasnt the label and band communicating at all? how did "two albums" get lost...both parties should have been aware at which album they were on

and if common courtesy's physical copy gets released in several weeks on a physical "sale" copy...will that count as album number 4?
03:44 PM on 10/07/13
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Jason Tate
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still confusing...
why wasnt the label and band communicating at all? how did "two albums" get lost...both parties should have been aware at which album they were on

and if common courtesy's physical copy gets released in several weeks on a physical "sale" copy...will that count as album number 4?
They were communicating. I asked the band that very question and their words will be far better than my summary -- so that should be coming as early as tomorrow. And, as you can see by reading the contract -- that term is (some may say purposefully) vague as hell.

It won't be physically released via Victory Records.
03:44 PM on 10/07/13
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Steve_JustAGuy
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still confusing...
why wasnt the label and band communicating at all? how did "two albums" get lost...both parties should have been aware at which album they were on

and if common courtesy's physical copy gets released in several weeks on a physical "sale" copy...will that count as album number 4?
Sounds like they were communicating, they just disagreed on everything, which led to the lawsuit.
03:45 PM on 10/07/13
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zach26
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Hm.

"The three page "deal memo" states A Day To Remember have to do five albums -- conditioned on sales figures, with corresponding royalty rates attached to each."

Part of the argument is that Homesick (Deluxe) shouldn't count as its own album release, no? I would be interested in knowing if that release had a different royalty rate from what Homesick (original release) had. That might legitimize the claim that it is a different album.
03:47 PM on 10/07/13
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randys950
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and also...
http://www.victorymerch.com/store/adaytoremember

i counted 5 ADTR releases that Victory has their name on
03:48 PM on 10/07/13
#9
Zack Zarrillo
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and also...
http://www.victorymerch.com/store/adaytoremember

i counted 5 ADTR releases that Victory has their name on
It's about what is defined as a release. Does a reissue count? Does a reissue from an old label count? Do b-sides count?
03:48 PM on 10/07/13
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I have.

I was very pleasantly surprised (hey, if something can get me to turn off the new A Wilhelm Scream album I've been waiting like 6 years for, that's saying something). I really like the pop-punk parts of it and the melodies they used. There are some massive choruses here. I actually prefer those sections (even the more acousticy songs) to the breakdown/hardcoreish stuff. That's just me though, that's where my tastes lie. I think fans of the band's style are going to love the album ... it could very well go down as their best album, that would not surprise me at all.

"Best of Me" and "Life @ 11" are my early favorites. Only had time to spin it a couple times though, been finishing this article -- and have more coming soon -- so I've been crazy busy today. Hah.

Damn that's good to hear. I'm a pop punk guy too so I'm pretty stoked to hear it. Haha this was a lengthy article and informative thanks again.

Going to start listening to Wilhelm Scream tonight. Try and do it before I get this album at midnight haha
03:50 PM on 10/07/13
loveisamixtape
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look all i care about is whether or not i get to hear common courtesy tomorrow. if it doesn't come out i'm kicking someone in the dick
03:50 PM on 10/07/13
Jason Tate
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It's about what is defined as a release. Does a reissue count? Does a reissue from an old label count? Do b-sides count?
Do live albums count, do newly recordings of old albums count, etc.

It's not gonna be a cut and dry case -- poll 100 people and you could probably flip a coin with what each would say given the evidence IMO.
03:51 PM on 10/07/13
Jason Tate
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look all i care about is whether or not i get to hear common courtesy tomorrow. if it doesn't come out i'm kicking someone in the dick
It's coming out ... dick kicking prevented.
03:52 PM on 10/07/13
Zack Zarrillo
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look all i care about is whether or not i get to hear common courtesy tomorrow. if it doesn't come out i'm kicking someone in the dick
You do
03:53 PM on 10/07/13
anamericangod
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Did anything ever happen with the Warped Tour assault incident with these guys?
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