PolyGram, Zappa In Legal Clash Over Song Rights

By Melinda Newman

Billboard, October 9, 1993

NEW YORK – PolyGram Diversified Entertainment has filed suit against Frank Zappa, alleging that the artist has failed to act in good faith with the company over the audio, home video, and broadcast exploitation of a Zappa tribute concert, "Zappa's Universe."

According to the suit, filed Sept. 14 in U.S. District Court here, PDE is seeking a declaratory judgment that it has the right to exploit Zappa's compositions as performed by various artists at the two tribute shows, although Zappa claims he did not give consent. The suit also alleges that Zappa's delays in negotiating terms "continue to threaten the viability of the project," and asks the court to direct Zappa to conclude negotiations with PDE "immediately."

Despite the suit, PolyGram imprint Verve released the audio version of "Zappa's Universe" Sept. 14. PolyGram Video intends to release the home video Nov. 2.

The tribute concerts, recorded in New York Nov. 7-8,1991, were the idea of impresario Joel Thome, who sent a proposal to PDE.

According to the legal papers, PDE agreed to the proposal `only if PDE could exploit the concert for the purposes of audio and video recordings and commercial television broadcast." PDE alleges that negotiations with the artist for permission to use his songs were concluded in an Oct. 2, 1991, agreement.

After that date, plans for the tribute evolved to include a performance by Zappa, for which PDE says separate terms were negotiated and agreed upon on Oct. 24, 1991. The shows' other performers included Steve Vai, Dweezil Zappa, Dale Bozzio, the Persuasions, and Rockapella.

According to the suit, at about the time of the concerts, Zappa boarded a chartered plane PDE had secured to fly him to New York, but exited the plane before it took off, "abandoning the trip and the concert."

After being informed the day of the show by Zappa's wife, Gail, that Zappa had prostate cancer, PDE and Gail Zappa discussed other ways for the artist to participate, including an interview to be included in the home video, the recording of a new song, or use of archival footage.

After the concerts, Verve announced its intent to release an album in spring 1992. According to the suit, the project "encountered significant delays because ... Zappa did not respond to PDE's repeated inquiries concerning the nature of his postgc-performance contribution." He subsequently refused to discuss any such arrangements until PDE reimbursed the family the remainder of the $25,000 travel bill it had incurred. PDE states that it had already paid $10,000 of the bill "as a gesture of good will ... without any legal obligation to do so, since its promise to pay for these accommodations was in consideration for Zappa's promised and undelivered appearance at the concerts."

In the meantime, PDE also sought to tie up terms left open in the Oct. 2 agreement. However, the suit states that as it tried to do so, Zappa began to maintain "that PDE has no such right [to exploit the concert] and that release of a phonorecord, home video, or broadcast of ` Zappa's Universe' would constitute copyright infringement." Last month, Zappa's attorney, Owen Sloane, told PDE that Zappa would not issue synchronization licenses for the home video.

Sloane disputes PDE's claims that Zappa had agreed to surrender his rights. "There were really no negotiations on Oct. 2," he says. "There was just an agreement to work further. There weren't any specific terms agreed to or discussed."

Sloane says he does not know if Zappa intends to file a countersuit for copyright infringement. Instead, he's hoping for a settlement. "I think this will get settled. We were fairly close to working it out beforehand."