Their mindless and irresistible 1963 rock anthem, whose considerable effect on pop music is still being felt today, may end up having an equal impact>"/>
Their mindless and irresistible 1963 rock anthem, whose considerable effect on pop music is still being felt today, may end up having an equal impact on the music business. This past April, after a five-year lawsuit, the Kingsmen triumphed in court over the record company that had stiffed them. And they did so using a novel, and improbable, strategy that could serve as a model for abused bands in the future—and put the fear of Louie into some sectors of the recording industry.
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"I'm happily astounded at the outcome of this case," says New York attorney Chuck Rubin, whose for-profit firm, Artists Rights Enforcement, has worked with many aggrieved musicians and composers, including the Kingsmen. "I believe this could have serious and very heavy repercussions throughout rock 'n' roll."
The Kingsmen's victory made headlines around the country, but its real significance was not generally understood. The case was mostly perceived to be another battle for back royalties, similar to that waged by many R&B artists of the '50s who have pursued their record companies in recent decades for the money they never got.
But what makes the Kingsmen's case unique, and maybe revolutionary for the record business, is that the band decided to kiss off the royalties they'd already lost. They opted instead to make a bet on future profits by trying to wrest ownership and control of their original master tapes from the Nashville company that held them. To the surprise of many industry experts, they succeeded.
The Kingsmen, now middle-aged, are still out touring 100 nights of the year, with just one of the band's original members. (They'll play a Fourth of July show in Seattle next month.) In winning their case, they aren't collecting any huge pot of cash—far from it. They face a massive task just to get out from under legal bills that are well into the hundreds of thousands of dollars. *What they've won is the opportunity to exploit "Louie, Louie" for themselves. Only if they can find new life in the "Louie, Louie" phenomenon, new markets for what Entertainment Weekly called "the World's Greatest Party Song"—only if we don't get sick of that inane record and continue to love it and want to hear it over and over again—only then will the Kingsmen actually reap any reward from their long legal struggle.
"Louie, Louie" was produced at the first-ever recording session by a group of half-assed Portland high schoolers who would never play anything as memorable again. (In fact, the singer whose "style" helped make the song so popular was out of the band before the record even hit the airwaves.) How exactly this tune first made it up to the Northwest is, like every part of the "Louie, Louie" story, a subject of great controversy and debate. Written in 1957 by an LA rhythm and blues man named Richard Berry, the song became a staple of the early '60s Northwest rock scene, played and recorded by all the popular bands of the time: the Wailers, the Sonics, Paul Revere and the Raiders, and the Kingsmen (whose name may, or may not, have been taken from a brand of aftershave).
The song itself is just your basic three-chord throw-away, like "Twist and Shout" or "Satisfaction." The famous rhythmic figure that made it so catchy—duh duh duh. duh duh—was derived from a Latin cha-cha that Richard Berry once heard. The descending triplet yelps on the chorus—"yeah, yeah, yeah, yeah, yeah, yeah"—came from the Wailers' legendary singer Rockin' Robin Roberts. What the Kingsmen added that day was a feeling, a kind of archetypal teenage energy. With its cloddish musicianship, woozy swagger, and strained, incoherent vocals, the Kingsmen's version captured the definitive feeble-headed, sexed-up, couldn't-give-a-shit, rock 'n' roll attitude.
As writer Dave Marsh recounts in his book, Louie Louie: The History and Mythology of the World's Most Famous Rock 'n' Roll Song, the Kingsmen's single had only modest success when it was first released in May 1963. Then rumors of unknown origin began swirling that the garbled lyrics were obscene. Suddenly kids, parents, politicians, and federal agents around the country were hearing things like, "I felt my boner in her hair," and "Each night at 10, I lay her again." An FBI investigation of the recording lasted for two and a half years, until a judge declared the lyrics to be simply unintelligible.
The real words (which singer Jack Ely hadn't quite mastered) were harmless: a sailor lamenting to a bartender named Louie about his too-far-away girlfriend. But then as now, controversy means cash, and even today, Windswept Pacific, the company that owns the copyright on the late Richard Berry's composition, refuses to allow the true, innocuous lyrics to be reprinted. "We want people to continue to fantasize what the words are," explains Chuck Rubin, who engineered Richard Berry's sale of "Louie, Louie" to Windswept (for a price that, Rubin claims, is topped only by the sale of "Happy Birthday" 10 years ago, which went for a reported $25 million). However, the original lyrics can be found on several Web sites, and were printed, in apparent violation of the copyright, on the front page of the Seattle Post-Intelligencer in April.
Once "Louie" faded from the charts, the Kingsmen continued recording and touring, but the Northwest rock scene was quickly trampled by the British invasion, psychedelia and "political" rock. By the early '70s, the Portland party boys were "nowhere," recalls Kingsmen drummer Dick Peterson, who joined the band shortly after "Louie, Louie" and has been with them ever since.
Then, in 1978, during the heart of the American "malaise," "Louie, Louie" turned up in a movie about fraternity life set in the early '60s. National Lampoon's Animal House featured John Belushi romping around singing a lewd version of the song, the very embodiment of the spirit of Louie. Suddenly the record was back on top, with stronger legs than ever.
Over the next decade, "Louie" appeared in numerous movies and commercials—including an extensive campaign for California Cooler during the wine cooler scare of the '80s—and on dozens of oldies collections with names like Frat Rock and Party Rock. The Notre Dame marching band did an arrangement of the song that became standard at every high school and college sporting event. In Washington state, an effort was launched to install "Louie, Louie" as the official state song, replacing "Washington, My Home."
All this time, the Kingsmen themselves were receiving no money for those few minutes of freakishly enduring studio work. In fact, they no longer even knew who owned their master tapes. The original single had been pressed by a young Seattle record impresarionamed Jerry Dennon. But when "Louie, Louie" took off, he had licensed the recording to a big R&B label in New York called Scepter/Wand, which later went bankrupt. The tapes then changed hands about a half-dozen times. "The soundtrack [to Animal House] was going platinum," Dick Peterson recalls, "the movie was no. 1. But we didn't know who to go after."
Peterson soon embarked on a slow and painstaking project of reclaiming the Kingsmen's intellectual property. He went after K-Tel, the infamous late-night flogger of "original hits by the original stars," which was selling a re-recorded version of "Louie, Louie" with singer Jack Ely. He wrested the phrase "Louie, Louie," from an LA clothing company that had beaten him to the trademark. He sued Rhino Records for releasing an unauthorized video with early '60s footage of the band.
But this was all ground clearing for the lawsuit that would soak up the next five years of Peterson's life and cost him "everything I've ever had." In 1993, the Kingsmen went after Gusto Records, the Nashville label that, they discovered—after sifting through numerous contracts bearing the names of many mysterious companies—was the outfit that owned all the Kingsmen's master tapes. Peterson enlisted Cheryl Hodgson, a private attorney in LA, who explains with a laugh that she was "the only lawyer dumb enough to take this case on contingency."
Gusto's reputation was checkered at best. B.J. Thomas and the Shirelles had sued the company in the late '80s to recover years of unpaid royalties. Gusto fought them all the way to the US Supreme Court, claiming it had no obligation to pay royalties on contracts that were signed by the previous owners of its tapes. The company lost and the artists got a hefty award, but there was no telling who was really owed what. As the Sixth Circuit judges wrote in their opinion: "The record-keeping practices of Gusto are (to use the kindest possible expression) unorthodox. By its own admission, Gusto keeps... no sort of record which could document the relation of any income to a particular master or artist." Gusto also managed to keep many of its financial papers under wraps by storing them in Missouri, where corporate documents have greater protection from subpoena.
For the Kingsmen, there was little point in trying to extract past royalties from a company that kept no accurate sales records. And besides, the statute of limitations would restrict them from seeking money beyond the past few years. So the band and its attorney came up with a new strategy: They would ask to rescind their original, three-decade-old contract. That contract, as per standard music industry terms, assigned ownership of the group's master tapes to the record company (in this case, Gusto, inheriting from Scepter/Wand) and promised a certain percentage of sales to the band. The Kingsmen argued that since they'd never received any of the promised royalties, they had a right to cancel their contract and regain ownership of their recordings.
It was a simple argument but not an easy one. As Peterson himself acknowledges, "The law says you can't sit on your rights," and the Kingsmen had done just that for 30 years. "None of the prior owners had paid royalties, and the Kingsmen never raised a peep," notes Gusto attorney Robert Besser. "For them to come back after 30 years [and sue Gusto] is a little harsh." The company argued that it had bought the masters in 1984 for a price that assumed no royalties were owed.
But a district judge in California decided that Gusto hadn't suffered any "prejudice" from the Kingsmen's delay, since the label had been pocketing money from the tapes the whole time. He ruled that the band was entitled to cancel its contract and regain possession of the masters.
But the case only got uglier from there. Gusto refused to hand over the tapes and filed suit against the band in Tennessee and New York, asserting it still had the right to license their music. Gusto even went ahead and made new licensing deals with Coke and the NBC sitcom Third Rock from the Sun.
Gusto also tried to drive a wedge into the opposition by trying to buy off singer Jack Ely. If Gusto could get just one of the plaintiffs to bail out, the Kingsmen's whole suit might have collapsed. "They approached me a few times" with a settlement offer, Ely says. But he declined, explaining, "I'm a Kingsman for life."
Meanwhile, Peterson fired the attorney who'd won the district trial for him. He even filed a malpractice suit against her, claiming she'd botched the case by failing to establish that the Kingsmen had exclusive licensing rights to the tapes, not just ownership. "Our representation was a joke," he asserts. "They won the case in spite of themselves."
Finally both the Tennessee and New York cases got remanded back to California. With the district court victory in hand, Peterson was able to recruit two corporate attorneys from a big LA firm to handle the complex tangle of appeals. On April 10, the 9th Circuit US Court of Appeals found in favor of the Kingsmen on every point, awarding all licensing rights to the band, and once more ordering Gusto to hand over the tapes. The judges further determined that any licensing revenue earned since the suit was filed back in '93 would also go to the Kingsmen.
It was an extraordinary victory, a clean sweep. Most observers believe a Gusto appeal to the US Supreme Court would be pointless.
The all-time good-time song has left behind a lot of bitterness and open wounds. Nobody seems to feel they received their due from "Louie."
Producer Jerry Dennon can hardly bring himself to recount the whole affair. "If somebody rapes your girlfriend and steals the money out of your bank account, you don't really want to talk about it," he tells me. Dennon believes he "made the Kingsmen," yet he was pushed aside after the band's initial success in favor of some bigger-name producers. "People confuse talent with luck," he adds. Dick Anderson, in turn, contends, "We had a very unfair contract with Jerden [Dennon's record company]." The first recordings only paid the Kingsmen 2 percent royalties, he says. "That's usury."
Jack Ely, now a horse trainer in rural Oregon, has never gotten over his ouster from the Kingsmen. "My life stopped at that moment," he says. "It was my voice, I was the one who found the song, I was the one that arranged it, it was my band. And look what happened."
Attorney Cheryl Hodgson says she still hasn't been paid and doesn't know if she ever will—"A big thanks for five years of your life." Noting that the 9th Circuit judges affirmed every part of the lower court's decision, Hodgson declares, "I did my job. I won the case."
Peterson says he has contracts with every one of the dozen or so musicians who've been part of the Kingsmen over the years. "I intend to honor those and make sure every Kingsman gets their share." He concedes the legal bills are "substantial" but he professes great confidence they can be paid off within a couple of years. The Kingsmen have an "administrator" for "Louie, Louie" in LA who is seeking new ways to market the song. Even now, there are more than 30 current licenses, according to Peterson. "These things are more than going to pay for our retirement."
But others aren't so sure. Jerry Dennon, who says he has a claim to one-seventh of the revenues, believes "we may end up getting nothing. That's the dark cloud hanging over this." In legal filings, Gusto claimed that in the four years prior to the lawsuit, the Kingsmen tapes generated only $20,000 or so in total income, though that's no doubt a lowball figure. Kingsmen attorneys put the song's annual income at closer to $100,000 a year.
But with "Louie," as with any song, the real long-term payoff comes from owning the composition, not any particular recording. For example, even though you hear the Kingsmen's "Louie, Louie" at every Mariners game, and just about every other professional sporting event in the country, the Kingsmen receive nothing from these broadcasts. Likewise they receive nothing from the record being played in restaurants, bars, and on radio. That's because the nation's copyright law does not provide for any "performance royalties" to the recording artist. The composer—or whoever owns the composition—does receive such royalties, and makes money every time the song is publicly heard, no matter who plays it. That's partly why Windswept Pacific paid Richard Berry seven figures for the rights to his song, while Gusto Records picked up the Kingsmen's masters—along with 10,000 other recordings by B.J. Thomas and others—for only $500,000 back in 1984.
Only when a record is synced up to some sort of video, as in a TV show or movie, does the performer get a cut of what are called "synchronization rights." Experts say that for "Louie," as for any hit song, the big-money licensing potential lies with national TV commercials. But "Louie" may be a little overexposed from an advertiser's point of view. Sure, it's synonymous with good times and consuming (beer, mostly), but it's neither fresh nor exclusive. If you think about the songs being used today, by Intel, Burger King, and others, they're '70s classics that you probably haven't heard in years, and never in a commercial.
But the more interesting question is: Will the Kingsmen case have a significant impact on artists' rights in the future? Some industry experts think so. "[Lawyers] just got themselves a whole brand-new way of going after the record industry," says music publisher Joe Vincent, who is working with the Richard Berry estate. "Do you know how many thousands of one-hit wonders there are out there?"
However, Cheryl Hodgson cautions that "the theory we recovered under only works if there's a complete failure to account and pay." If the record label has paid a band something, no matter how minimal, it will be hard to justify tearing up the contract. Northwest rock historian Peter Blecha notes: "Any record company can juggle the books to show that what they paid a band was fair. They'll say, 'Well, we're investing in their career, you don't understand the overhead, there were defective returns, we flew these guys to Florida, we're still losing money, Your Honor.'" And zero royalties is hardly unheard of. Just last year, the Goo-Goo Dolls sued their longtime label, Metal Blade Records, claiming they had received nothing. (The dispute has now beensettled.)
Back-catalog artists like the Kingsmen, who are no longer coddled stars, will always be prime targets for exploitation. Joe Sasfy, a consultant to the big reissue company Time-Life Music, says the Kingsmen verdict "sends the message to record companies that they're better off paying royalties than losing control of the material." Though as Kingsmen attorney Scott Edelman observes, "There's an underside of the recording industry whose behavior is not going to be affected by anything," let alone this case.
Even the disputes surrounding the Kingsmen's work aren't entirely over. Jerry Dennon has revived his Seattle record label, Jerden Records, and released a CD of live, early '60s performances by the Kingsmen. Asked about these, Dick Peterson says, "I don't know under what authority he's putting those things out. He deeded all masters to us. It's some understanding we have to come to with Jerry."
The Louie Report, maintained by Eric Predoehl, who is working on a documentary film about the song.
The Kingsmen website
Learn to play Louie Louie for the next time you're at a frat party