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Thursday, January 1, 2015

Restrictive Covenant, Sweet Restrictive Covenant - A Legal Lesson From Mötley Crüe

My son took me to see Mötley Crüe at "the" Garden towards the end of last year (pretty cool, huh?), and, believe or not, the concert made me think of the various state laws governing the enforcement of restrictive covenants. I'll try to explain.

We're inundated with tours of bands that have at best a tenuous connection to the "real" bands that they pretend to be. Names from the 50s and early 60s in particular crop up with nary a single person in the group who has any particular connection to the group that played under those names during their respective heydays.

Now I take the point that I need to be careful before over-generalizing. Bands do evolve, and they're still the bands they pretend to be. Particularly where personnel change in the band's prime, the band is still the band. Guns 'n' Roses didn't stop being G 'n' R just because Matt Sorum replaced Steven Adler. (On the other hand, the departure of Slash and everyone-else-other-than-Axl is clearly a different story.) I'll go out on a limb here and say that no one would argue that the Beatles just weren't the Beatles without Pete Best, regardless of whether he left before or after the band first adopted its name. Even major players can depart and leave the band intact. Say what you want, but Van Halen was still Van Halen during the Van Hagar stage. Black Sabbath didn't cease to be Black Sabbath with Dio, regardless of how much one might've yearned for the Ozzy days. And just look at Brian Johnson's AC/DC. (But please DON'T look at the once Halford-less Judas Priest.)

There are interesting spins (as a DJ might say) on this. Styx without Dennis DeYoung. Foreigner with only Mick Jones. Journey with the guy from the Philippines. In the Styx and Journey cases you had major players replacing lead stars after the band's creative period had essentially passed. In the Foreigner case, you conversely had an almost total recasting of the band by its driving force, but again after the band's creative period had passed. I'm not quite sure whether these are the bands they pretend to be (although at a minimum they sure do sound pretty good, if you ask me).

There are countless other examples. At the end of the day, then, when is the band no longer the band? Maybe the answer ultimately lies with the ol' reliable Potter Stewart saw, ". . . I know it when I see it." Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring) (referring to pornography).

Now enters Mötley Crüe to put a whole new "spin" on the topic, with the original members having signed a "Cessation Of Touring Agreement." This bit of cleverness is an actual written agreement that obligates each of the four original/final members of the band not to tour under the "Mötley Crüe" name.

According to one report, a certain attorney has derided the agreement as potentially being unwindable, with the concurrence of all four signatories. The concept underlying the criticism is that there is no guaranty that the "Final Tour" will be the "final" tour, in that the Crüe can always tour again with the not-so-unlikely eventual concurrence of all four members.

While maybe it's indeed true that the agreement can be terminated or otherwise unwound, focusing on that possibility, to me, completely misses the point. I don't see the importance (or even desirability) of the agreement as being that Mötley Crüe can never tour again. I know that the spectacle of Kiss-like "final" tour after "final" tour (and so on) can be disturbing. But seeing the Crüe together again could be electrifying and exciting if the reunion were timed and executed properly, and I don't think that I want it absolutely guaranteed that such an eventuality is literally impossible. Forever is a long time and, as one famous spy might say, never say never again. (It's worth noting that maybe someday they'll want to get together for charity, making any real impediment to reunion arguably yet more unfortunate.) Thus, I'm not sure that a truly permanent anti-touring result would necessarily be a good thing, even if it were doable on an enforceable basis.*

Rather, I see the significance of the agreement here as being that, when you think about it, there can never be a "Mötley Crüe" with ANY of the original bandmembers that doesn't have ALL of the original bandmembers (i.e., a "Mötley Crüe" that isn't "really" Mötley Crüe), while all of them are still alive.** How clever and creative! Four guys get together and effectively confer on each of them personally and severally the power to stop the others from diluting the brand and messing with their collective legacy . . . regardless of what the record company wants or says. No cheap (Mötley?) imitations; no fights over whether the band is really the Crüe; no protests about how the record company has some nerve trotting out a quasi-Crüe; etc. Justice Stewart's surmise would seem to have been rendered moot, as applied to the Crüe.***

So, after enough time has gone by, maybe the Crüe will once again want to Kickstart Their Hearts, and maybe, after all, we'll want to see that . . . especially if we're talking about the unadulterated original line-up. If there is to be more from these guys, that's the possibility that the agreement here would seem to have both preserved and assured. Hey - I wonder if over time we're going to see other contracts of this type, maybe pitched more as anti-imitation or anti-replication agreements as opposed to anti-touring agreements. (Are you listening, Rush and U2?)

I think that it's all verrrrrry interesting (as Artie Johnson might've said). Who woulda thought that Lee/Mars/Neal/Sixx, with a little help from their lawyer, would come up with such a fascinating legal play? It's a Feelgood move, if you ask me.

And, of course, with no connection at all to any of the foregoing, HAPPY NEW YEAR!!

* I suppose that, if they truly wanted to make it a tour-cessation agreement, they could've gone another extra step of purporting to make, let's say, each of their fans into a third-party beneficiary of the agreement. Then, at least on the face of it, any fan who's unhappy with the notion of a reunion might have standing to stop them. I'm not sure a court would give that kind of power to purported third-party beneficiaries in that manner, but it could make for a fascinating inquiry. As noted in text, however, I'm not sure that a truly permanent anti-touring result would necessarily be such a good thing.

** I'm assuming, in this regard, that the agreement has a bulletproof and enforceable (even in California?) specific-performance provision.

*** I suppose that whoever owns the name of the band could in theory trot out four totally new pretenders, but in this particular context I'm not overly worried about that.

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