Student Work – Ariel Castro by Nick Smith

Nick Smith

castro

Ariel Castro
Image from CNN.com, clilck for source

QUESTIONS PRESENTED:

1.)   Does the late Ariel Castro’s estate have the potential to generate significant music-related revenues which could go towards helping his victims?

2.)   Can his former bands be sued by the Cleveland Courage Fund for music-related monies?

3.)   Can these bands have their music earnings garnished in order to compensate Castro’s victims?

BRIEF ANSWER:

The short answer is maybe.  To a great extent, the answers to these questions would center upon how much input Mr. Castro had in preparing the compositions which were recorded by the bands he played in.  If he were proven to have been a composer or a co-composer, then there would be a high probability for a successful lawsuit against those musical organizations.  However, if he were shown to have been merely a session player on those recordings, the chances of a successful suit would be far less likely, but this is not to say that the possibility of a successful suit would be completely out of the question.

THE FACTS:

On May 6, 2013, Ariel Castro was arrested for unlawfully imprisoning three women, namely Amanda Berry, Georgina “Gina” DeJesus, and Michelle Knight.  It was subsequently proven that he had kidnapped and imprisoned them in his home for between ten and twelve years, during which time, Castro fathered a daughter by Ms. Berry.  The daughter was six years old at the time of Mr. Castro’s arrest.  On July 26, 2013, Castro agreed to a plea deal in which he admitted his guilt on 937 criminal counts of rape, kidnapping, and aggravated murder.  The latter charge involved the murder of the unborn child of one of the women.  At trial, he was given a life sentence to prison without the chance of parole, plus 1,000 years.  One month later, he hanged himself in his prison cell (http://en.wikipedia.org/wiki/Kidnappings_of_Amanda_Berry,_Gina_DeJesus,_and_Michelle_Knight).

Also in July of 2013, Mr. Castro pleaded guilty in Cuyahoga County Court of Common Pleas to pay for the demolition of his former home.  The costs for said demolition were $22,268.83.  Oversight of the demolition was to be conducted by the Cuyahoga Land Bank of Cleveland.  As part of the plea deal, any remaining money was to be paid to a non-profit corporation, the Cleveland Courage Fund.  The purpose of this nonprofit, which was set up in the aftermath of the notorious case, was to provide financial support to Mr. Castro’s victims, namely Gina DeJesus, Michelle Knight and Amanda Berry and her 6-year-old daughter by Castro. It has subsequently been shown that Mr. Castro’s home was in foreclosure, and he owed over $2,500 in unpaid taxes dating back to 2010 (http://www.theglobeandmail.com/news/world/cleveland-suspect-ariel-castros-troubled-life/article11778523/).

DISCUSSION:

Obviously, with regard to the estate, the government, both federal and state, will want their fair share of the $2,500 in unpaid taxes, so the Cleveland Courage Fund will have to await the result of those claims against the estate.  In addition, lawyers for the Fund will have to sort out Mr. Castro’s finances concerning the aforementioned demolition.  If there is anything at all straightforward about this case that would most likely be fairly routine as far as the financial aspects are concerned.  However, there is another angle to the estate that should be given some careful thought.  This concerns Mr. Castro’s income as a musician.

The news accounts of the case make it clear that Mr. Castro was a bass player and musician in Cleveland area bands.   It is unclear how much money Mr. Castro made from being a bass player.  However, we do know that he played in an organization known as the Latin Jazz Project (http://www.nydailynews.com/new-york/yonkers-mom-castro-stroked-daughter-hair-article-1.1339371#ixzz2eS1Tucih).  From the accounts on the internet, he also appears to have been a peripheral member of another band known as Grupo Fuego, but his performances with this organization were sporadic at best.  He supposedly performed with this band only a few times within the last five years (http://www.theglobeandmail.com/news/world/cleveland-suspect-ariel-castros-troubled-life/article11778523/).  He also played with Los Boyz de la Merengue and Grupo Kanon as well as various jazz bands.  If I were a lawyer for the Cleveland Courage Fund, I would want to make a thorough investigation as to what bands Castro played in — more on that later as to why it might be important.

Any monies which the estate would generate would go to the Cleveland Courage Fund.  A cursory look would seem to indicate that Castro’s music-related income would appear to be very insignificant after all the expenses that have been mentioned so far in this memorandum.  Despite this likelihood, there is another very distinct possibility that the estate could generate far more income.  This major issue is whether or not Mr. Castro’s professional relationship with the above-mentioned bands has the potential to garner any significant cash flow in the future which could be significant enough to affect the totality of the entire estate.  From the internet accounts of Mr. Castro’s participation in these musical projects, it would appear that his contribution to the overall sound of these projects was confined exclusively to that of a session player and pick-up gig performer.  As such, he would presumably have been paid on a per diem basis.  In essence, he would have been a bit player in someone else’s project, a sideman at best.  Such a scenario would indeed simplify Mr. Castro’s estate: it would mean that royalty payments would not be an issue.

However, there is another quite different scenario, which is that Mr. Castro’s participation in some of these projects was more than that of a simple session player.  In such a scenario, Mr. Castro’s participation would have been quite different: his input would have been not that of session player, but rather, that of co-composer.  If this were proven to be true, the nature of the creative process and by way of extension, the accrued royalties generated by intellectual property, would be major.  This would be especially true in light of how the death of a musical personality can often result in the spike of revenues.  Indeed, the history of pop music in particular is rife with cases in which the death of an individual causes an increase in sales.  An example would be the relatively recent case of the late Donna Summer.  Just to show the dimensions of such an income, let me point out the percentages in the case of Ms. Summer’s record sales: “A few days after her death, her album sales increased by 3,277 percent, according to Nielsen SoundScan.  Billboard reported that the week before she died, Summer sold about 1,000 albums. After her death that number increased to 26,000”

(http://en.wikipedia.org/wiki/Donna_Summer).  Of course, Mr. Castro’s estate cannot be anywhere near as lucrative as that of Ms. Summer; however, in the realm of intellectual property, as it relates to music, the major potential for generating cash flow is the recording medium because this is the most tangible manifestation of intellectual property within the music world.  With that thought in mind, the issue then becomes: on how many of the recordings of Mr. Castro’s former bands did he play an important part?  This would involve major research on the part of the lawyers for the Cleveland Courage Fund, far more than one could go into given the brief space allotted for this memo.  If that organization could prove that he had co-composer status, then the potential for big earnings would be significant to say the least.  Another side issue would be the following: if he were not deemed as having co-composer status, but instead had the status of a mere session player, would the dollars accrued still conceivably be worthy of note vis a vis royalties?  I pose this question because, if the music-buying public were still moved enough by the infamy and fallout from this notorious case to purchase vast quantities of the recordings of the aforementioned bands simply because of hysteria and interest produced by the lurid nature of Mr. Castro’s crimes, then might this scenario generate significant cash that could be claimed by the Cleveland Courage Fund?  This might conceivably spark a legal war of sorts between the Fund, whose interests are strictly for Castro’s victims, and the band leaders, whose interests are presumably for their own financial benefit.  The exchange of arguments between lawyers for Mr. Castro’s former bands and the lawyers for the Cleveland Courage Fund might conceivably go as follows: the lawyers for the bands would say that Mr. Castro was a sideman and was given a series of onetime only per diem payments.  As such, he was not eligible for royalties.  The lawyers for the Cleveland Courage Fund might counter by saying, yes, Castro was a session man, but the only reason that you as bands are making so much money today is simply by virtue of the fact of his crimes and the lurid interest that those crimes generated among consumers.  Those very consumers are coming to your websites in droves to download the songs that Castro played on.  That in turn enriches you the members of the bands that he played in.  You indirectly benefit from his crimes, even if that benefit is unintentional.  Therefore, the three young women and the young child who suffered as a result of his crimes should be entitled to a share of those monies.  Admittedly, the argument is a bit of a stretch, but it might very well sway a judge in a surrogate’s court somewhere in Cleveland.  In the past, far bigger stretches have been made by lawyers, and those stretches have many times been successful.

SIMILAR CASES:

I should point out that the following are cases have the potential to affect ours.  Their authority to the Cleveland Courage Fund’s case would be persuasive.  As far as I can tell, there is no mandatory authority here.

That being said, perhaps the closest case to our own would be that of the notorious Charles Manson.  It would appear that one small part of that case involving intellectual property was at least partially settled.  The Manson case was similar in that it concerned monies generated from record sales which affected the estate of a notorious and infamous person, in that instance, a still living notorious person.  What is important to know is that in December of 1993, Bartek Frykowski, the son of Voytek Frykowski (one of Manson’s victims) filed two lawsuits.  His first suit was against the rock band Guns ’n Roses for a portion of the royalties that were generated from a Guns ’n Roses cover tune of a Charles Manson song entitled “Look at Your Game, Girl.”  The settlement was that Guns ’n Roses would pay Frykowski $62,000 for every million copies of the album, “The Spaghetti Incident.”

(http://www.nytimes.com/1993/12/26/us/victim-s-son-gets-manson-royalties.html).  In the second litigation, Frykowski sued Geffen Records.  On January 6, 1994, the U.S. District Court of the Central District of California awarded the younger Frykowski “$72,608.26 from Geffen Records, the debtor of judgement and judgement debtor for Charles Manson, leaving a balance…of $1,338,873.74” (http://truthontatelabianca.com/threads/barteks-lawsuit.898/).  This case is quite possibly still active because the younger Frykowski died mysteriously in 1999, and his daughter is reportedly still pursuing the aforementioned balance from Geffen Records.

Another Charles Manson song, which was surprisingly good, was “Never Learn Not to Love.”  This tune was recorded by the Beach Boys, and they in fact performed it on the Mike Douglas Show in 1968 (http://www.youtube.com/watch?v=8I0v2bVX8j4).  It would seem that for whatever reason, Mr. Frykowski decided not to go after the royalties generated by that particular Charles Manson song.  Quite conceivably, Frykowski’s daughter, who is a minor star of sorts in Poland, might feel differently about that.  Therefore, lawyers for the Cleveland Courage Fund might want to keep a sharp eye on royalties for that song because it has the potential to affect their case.

What is interesting from a legal perspective is that Mr. Manson’s music is out there on the internet, albeit in bootlegged form, and if anyone like Mr. Frykowski’s daughter wanted to launch a suit, it might be successful.  I myself on occasion have heard Manson’s music from time to time in bars, where it is viewed as a creepy novelty item.  Manson is not making any money on his work, but others are.

Another similar case to Castro’s would be the estate of Wade Michael Page who killed himself immediately after gunning down six Sikhs in 2012.  Mr. Page, a neo-Nazi, was a major exponent on the Fascist music scene (http://en.wikipedia.org/wiki/Wisconsin_Sikh_temple_shooting).  So far, there is no evidence that the families of his victims have initiated any lawsuits against Mr. Page’s estate.  Quite possibly, the reason for this might very well be that the music in question is so blatantly odious and awful as to preclude even the most ephemeral interest by consumers who would otherwise be interested in such product purely from a lurid perspective.  The other possibility is that Mr. Page’s Fascist friends might be scary enough to frighten off the families of the victims from even considering such a suit.  However, the lawyers for the Cleveland Courage Fund might again do well to keep an eye on this case because a successful suit in that case might give the Fund some persuasive authority in pursuing a suit against Mr. Castro’s former bands.

CONCLUSION:

The case against Mr. Castro’s former bands might not be worth the trouble to pursue.  However, in order to know this for sure, the Fund would have to closely monitor the sales of Mr. Castro’s former bands.  Most likely, those bands do not use ASCAP or BMI, but then again, maybe they do.  It might be worth a call or two to find out.  In order to prove this case, they would have to demonstrate a linkage between Mr. Castro’s having played on certain recordings and a spike in paid downloads of MP3’s or CD sales.  Yes, CD sales are less and less important compared to internet sales; however, in the lower rungs of the music business which is what we are talking about here, CD’s are still a factor, albeit a smaller and smaller factor as time goes by.  Essentially, CD’s are much of the time these days sold at gigs.  Still, such sales might be significant.  A final issue to consider would be the statute of limitations.  Every state is different on this, but that is not the problem which immediately comes to mind.  Rather, the big issue might be the following: when does the clock start ticking on the start of the limitations rule?  In the example of the Frykowski cases against Geffen Records and Guns ’n Roses, the suits appeared twenty-four years after the murders.  That seems like a rather long time in which to file no matter what state the suits might be in.  Might the Castro case be similar in this regard?  Maybe the answer is yes, maybe no.

Proving a case against the former bands might be difficult, but not impossible.  Notwithstanding this initial problem, if it were successful, it could very well lead to new law in both the areas of intellectual property as well as estates.

References

1.)    http://en.wikipedia.org/wiki/Kidnappings_of_Amanda_Berry,_Gina_DeJesus,_and_Michelle_Knight

2.)    http://www.nydailynews.com/new-york/yonkers-mom-castro-stroked-daughter-hair-article-1.1339371#ixzz2eS1Tucih

3.)    http://www.theglobeandmail.com/news/world/cleveland-suspect-ariel-castros-troubled-life/article11778523/

4.)    http://en.wikipedia.org/wiki/Donna_Summer

5.)    http://www.nytimes.com/1993/12/26/us/victim-s-son-gets-manson-royalties.html

6.)    http://www.youtube.com/watch?v=8I0v2bVX8j4

7.)    http://truthontatelabianca.com/threads/barteks-lawsuit.898/

8.)    http://en.wikipedia.org/wiki/Wisconsin_Sikh_temple_shooting

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