Hey Buddy Holly, Take Another Look At Bob Dylan

   The 49^th Grammy award show reminded me of a surreal moment I experienced during the 1998 Grammy ceremony.  In 1998, Bob Dylan received the Grammy for his album, Time Out of Mind.  The irony of the event exists in the fact I had just entered my appearance in the U.S. by CouponDropDown”>Court of Appeals for the Third Circuit to represent James Damiano in his copyright infringement claims against Bob Dylan and Sony Music Entertainment.  Dylan made a comment at the 1998 Grammy ceremony about Buddy Holly that few could likely appreciate or understand.  I did.

    Damiano’s copyright claims were dismissed in 1996 by the U.S. District Court for New Jersey just before Dylan released Time Out of Mind. The U.S. District Court Judge dismissed the copyright claim after listening to tape recordings of Dylan’s song Dignity and a recording of Damiano’s song, Steel Guitars.  Damiano had an expert witness compare the melody of his song, Steel Guitars, to that of Dignity.  A Harvard educated musicologist found a substantial similarity between the two songs, which is the standard for a jury by CouponDropDown”>to apply in finding an infringement of copyright.  The judge did not allow the case to go to a jury after finding the version of Damiano’s song, which the expert analyzed, had not been registered for copyright with the U.S. Copyright Office.  Damiano had a version of his song registered for copyright, but the judge declined to consider the expert opinion given that the analysis did not discuss differences in the recorded renditions of Damiano’s song, Steel Guitars.  I did not handle the case in the U.S. District Court.  Damiano’s attorney in the District Court had been suspended from the practice of law in New Jersey (for reasons not related to this case) after an appeal was filed.  The attorney was not allowed to handle the appeal, so I accepted the challenge of the appeal.  Shall I tell you why?

    I met James Damiano in 1990.  We worked together.  Jim showed me a backstage pass to a Dylan concert and explained how he auditioned for John Hammond Sr., the CBS executive who signed Dylan.  I was impressed with Jim’s lyrics.  Jim and I met at my apartment where I first heard him by CouponDropDown”>play his song Steel Guitars.  I played solo for the song, but I recall my thoughts that the song would be better played in the more familiar key of E.  Dignity is played in the key of E.  Jim’s song had no lyrics, but it had a melody played on the guitar.  

    Dylan released his song Dignity in 1994 on his Greatest Hits 3 album.  Jim called me at the time, and I could hear a similarity between Dignity and Jim’s song.  Jim tells me he handed his song to Dylan along with a book of song lyrics in a meeting backstage at Dylan’s concert at Jones Beach Theatre in Long Island, NYon July 8, 1988.  Before I heard Dignity, Jim had asked for my by CouponDropDown”>opinion as to whether he could make a copyright claim for song lyrics.  He gave Dylan lyrics which he believed had been used on Dylan’s Oh Mercy album.  After reviewing the law as a student in law school, I didn’t see a case that could be made for Jim’s lyrical claims.  Jim did consult attorneys about the case, including a law professor of mine.  However, when the song Dignity came to light, Jim’s claim became based on melodic and rhythmic similarities.  George Harrison lost his copyright case for My Sweet Lord based on melodic similarities with the Chiffon’s hit single, He’s So Fine.    

    Jim found an by CouponDropDown”>attorney to represent him in New York, and he sued Dylan for copyright infringement in New Jersey in 1995.   After the case was filed, the U.S. District Court granted a request from Dylan to enter a confidentiality order in the case.  All of the information gathered by the attorneys in the case is protected by the order so the parties and their attorneys cannot release the information to the media.  Jim included claims of lyrical misappropriation in his case along with the infringement claim against Dignity.  Jim claimed Dignity was an infringement of his song Steel Guitars.

    I discussed some of Damiano’s lyrical infringement claims in the appeal brief I filed.  Three Dylan songs from Oh Mercy where Damiano sees his influence are “Most of the Time”, “What Good Am I”, and “Disease of Conceit” (Damiano made other lyrical claims as well).  Here’s a comparison of lyrics Damiano wrote (in a variety of different songs) with lyrics published by Dylan in these three songs and Dignity:

What Good Am I (Dylan)                                          Damiano

Dylan                                                                                 Damiano

“Disease of Conceit”                                                   “Conceit is a Disease”

 Most of the Time (Dylan)                                           Damiano

Dignity (Dylan)                                                                     Damiano

Looking into those lost forgotten years                      Lost days and forgotten years

            The U.S. District Court dismissed Jim’s copyright infringement claims in their entirety in December, 1996.  The Court found the lyrics at issue didn’t meet the “originality” threshold to make a copyright infringement claim.  The Court also found that the Steel Guitars song analyzed by Jim’s expert had not been registered for copyright.

   The Court didn’t think the registered version of Steel Guitars sounded similar enough to Dignity to support a copyright infringement claim.   Jim’s attorney filed a motion for the Court to reconsider the decision.  However, the attorney also asked the Court for an extension of time to file the motion for reconsideration so he could attach a certificate of copyright registration on the version of Steel Guitars analyzed by the expert.  The District Court granted the extension of time.  Jim’s attorney did not file an appeal of the decision since the Court granted the attorney’s request for more time to file his motion.  The District Court denied the motion for reconsideration, and then an appeal was filed.

    I filed my brief in the U.S. Court of Appeals in 1998.  I would explain my complete argument if this article were a legal publication, but suffice it to say, I argued the Court was wrong for substituting his opinion for that of an expert musicologist from Harvard University.  Just before filing the appeal, the U.S. Court of Appeals for the Second Circuit held that a District Court judge commits reversible error when they prevent a copyright infringement claim from going to a jury where an expert finds two songs to be substantially similar.  I expected to win the appeal. 

     The appeals court dismissed my appeal.  I lost the case when the appeals court found the District Court granted an extension of time for Jim’s trial attorney to file a motion for reconsideration.  The attorney erred by waiting for the Court to rule on the motion for reconsideration before filing his appeal.  I considered another appeal to the U.S. Supreme Court, but one week before the Third Circuit dismissed the appeal, Jim’s District Court attorney was disbarred in New York.  The attorney had not been readmitted in New Jersey after a 6 month suspension.  I could not afford to help Jim with his case even if he won the appeal.  So I declined to file anymore motions or appeals in the case.  I found consolation in an argument I submitted in my brief to the Third Circuit.  My argument stated that Jim could file a new copyright infringement lawsuit if the predicate for District Court’s jurisdiction was based solely on the registration.  Having made the argument when I did, I believe I preserved merit for Jim to file a new copyright infringement claim.  His claim for infringement of the Steel Guitars version — with the expert analysis, was dismissed solely for the reason of not having a certificate of registration when the case was filed.  The expert’s version was registered for copyright after the case was technically dismissed.      

    So what does this have to do with the Grammy Awards ceremony in 1998?  Dylan made a comment when he received his Grammy for Time Out of Mind.  He stated that Buddy Holly inspired him as a young musician when he “looked at” Dylan from the stage during a concert [watch the speech on youtube:  http://www.youtube.com/watch?v=4yGh3S4wMLY].  Jim told me that Dylan “looked at” Jim from the stage when he attended a concert on September 10, 1988 at WaterlooVillage in Byrum, New Jersey.  Jim was given 7^th row, center stage seats to the concert from CBS while being asked to bring songs for Dylan.  Dylan “looked at” Jim during the concert.  This obscure fact was documented in a book I advised Jim to write called Eleven Years.  The book is simply a compilation of Jim’s lyrics; letters from attorneys Jim consulted; and a narration of events leading Jim to believe Dylan misappropriated his material.   The book also contained a news article where Dylan confessed to having writer’s block in the 1980s, during the time he accepted Jim’s material.  I recommended Jim write this book to help explain his case to attorneys he consulted. 

   Jim’s book “Eleven Years” (titled to illustrate the period of time he provided material to CBS records in hopes of a recording contract) became a problem in his copyright case.  Before Dylan released Dignity in 1994, Jim made a deal with a friend who was interested in selling his story about Dylan’s use of lyrics without permission.  I recall Jim telling me in June, 1993 about a specific interest Howard Stern took in the story.  Howard Stern read the book Eleven Years and commented about it on his show.  In any event, the deal made between Jim and his friend became the basis of a motion Dylan’s attorneys filed for the District Court to enter a confidentiality order.  Dylan claimed Jim’s entire copyright infringement lawsuit was a fraud fabricated for the purpose of publishing a story about Dylan stealing his songs.  The District Court wanted to be certain that depositions in the case were to be made for good faith reasons, so a U.S. Magistrate entered an order to preclude Jim from exploiting information his attorney obtained in the case about Bob Dylan’s songwriting methodology.  All the information Jim obtained from the case could not be released to the media or any third party.  The confidentiality order has never been lifted. 

   After my involvement with Jim’s case, I focused my attention on building a quiet law practice in Maryland.  I had to leave my employment with aMaryland law firm in March, 1998 and open my own office to take this case.  Dylan’s attorneys filed a motion earlier on, for Jim and his attorneys to pay their attorney fees incurred in defending the case.  Dylan claimed that the entire lawsuit was frivolous and his attorney fees should be paid as a sanction against Jim and his attorney(s).  I accepted the case knowing of this pending motion, but I believed in the merits of the lawsuit.  Jim couldn’t afford to pay his own attorney, much less Dylans’. 

   After the case was dismissed by the Third Circuit, I recommended Jim consult with counsel in New Jerseyabout relief he can seek regarding the confidentiality order.  My charity had been exhausted at that point.  I had no interest in publicity about the case.

   I informed Jim of the theoretical basis for him to file a new lawsuit, and I asked a prominent D.C. patent firm to take the case.  The firm gave me a letter stating the case had merit, but declined involvement on a contingency fee contract.  I told Jim he was on his own.  I never agreed to represent him beyond the appeal stage of the case.  Jim was left alone to deal with the pending motion for attorney fees and any motion he wished to file to lift the confidentiality order. [After sending this press release to Dylan's attorney's and the NY Times, I did go back to the U.S. District Court in 2007 to address issues related to the confidentiality order.  However, the order is still in place]

     Jim went back to the Court on his case in 2000.  He published information about the case by posting it on the internet, but he did this in violation of the confidentiality order.  The District Court found Jim to be in contempt and sanctioned Jim for violating the order.  [I went back to the U.S. District Court on a related contempt motion against Mr. Damiano in June, 2007] 

   I have kept quite about the case for multiple reasons[before sending out this release in 2007].  The history and disposition of the case seem to be an embarrassment to my profession.  I have never understood why Dylan has kept so quite about the case.  I’ve never heard one word from him about the case aside from the comment he made at the 1998 Grammy ceremony.  I wish he would publicly address Jim’s claim.  Maybe he’s kept quiet because the Press has never asked him about the case.  Did Dylan meet Jim backstage?  Did he use Jim’s material?  Does he believe Jim deserves credit for ideas related to Dignity?  Perhaps, Dylan remains silent to avoid a new lawsuit.

[Brackets added to update this release] (This press release was sent to the New York Times in response to the following story I read about Dylan’s use of lyrics by the civil war poet Henry Timrod: http://www.nytimes.com/2006/09/14/arts/music/14dyla.html?sq=Bob)