"Giving Frank Foster a Hand"

Reprinted from http://jazzwax.com

Tenor saxophonist Frank Foster is best known for his monumental work in the reed section of Count Basie's "New Testament" band starting in 1953. Over the decades that followed, Foster composed and arranged many songs for the Basie orchestra, including Shiny Stockings. Today, Foster, 82, lives with his wife Cecilia in Virginia.

Brian Grady is a filmmaker. When Brian began making a documentary on Foster at his family's request several years  ago, Brian encountered one of jazz's dirty little secrets: Composers of hit jazz songs aren't necessarily rolling in dough. [Pictured: Filmmaker Brian Grady with Frank and Cecilia Foster]

Like any good journalist or historian, Brian cared deeply about his subject—so deeply that when he learned that Foster wasn't receiving what he should have been earning on his compositions, Brian stepped from behind the camera and figured out how Foster and his family could set things straight legally and financially. The copyright lessons are powerful, especially for jazz legends and their heirs looking to reclaim rights to original works. Brian performed an honorable and much needed task.

But rather than spoil this story, I asked Brian to share his experience and the events with JazzWax readers:

"I first met Frank Foster and his wife Cecilia in 2006. He was being honored at a concert in South Orange, N.J., and I was producing a short video tribute to him for the event. When bassist Earl May died in 2008, May's family asked me to put together a similar video tribute for his memorial service, which the Fosters attended. After May's service, Frank's wife Cecilia called me to see if I would consider filming a more in-depth profile of Frank with interviews of friends and colleagues. I agreed.

"The first person I needed to interview was Frank, whose narrative would establish the film's baseline story. In June 2008, I visited the Fosters at their Chesapeake, Va., home. I spent three days interviewing Frank and Cecilia as well as scanning the amazing photos of Frank that covered the walls of their townhouse into my computer.

"While I was there, Frank was busy writing arrangements for Tony Bennett's A Swinging Christmas album, which was due out later that year. The recording session was scheduled to begin in a few days, and Frank was under the gun to finish. Cecilia mentioned several times that if it hadn't been for the commission he was receiving for the project, she didn't know how they would have paid the mortgage that month.

"At first I thought she was kidding. But then I heard Cecilia mention it to a friend on the phone, and she told me repeatedly how lucky they were that Frank got that gig. Frank mentioned it himself in one of our interviews.

"Over time, I started to put the pieces together. The Fosters' finances had been dicey ever since a stroke left his left side partially paralyzed and kept him in a wheelchair most of the time. While he could still write and arrange on his computer upstairs in his studio room, he no longer could play his saxophone, so touring and paying performances were out.

"In the months that followed, as I worked my way through the interview list provided by Cecilia, a theme began to emerge. Initially, the focus of my documentary was going to be solely about Frank's career as a mentor and teacher, and how he had influenced so many musicians and bands in his epic career. But the story soon shifted as I heard repeatedly that Frank should have been a wealthy man by now given all of his compositions for the Count Basie band.

"In particular, the song that kept popping up as a prime example was Shiny Stockings. The song has been recorded over 300 times by a wide range of jazz artists. Yet, if you were to ask most people familiar with the tune for the name of the composer, they would likely draw a blank.

"Part of the problem was how the song was introduced over the years, usually as 'Count Basie's hit, Shiny Stockings.' But while that explained Frank's lack of fame, it certainly didn't explain why royalties hadn't been rolling in over time.

"So in 2008 I began to look into copyright and intellectual property laws. Frank said he didn't pay too much attention to the business side of things, especially when he was young and playing in Count Basie's band. Without seeing the original contract, I had to assume that Frank was getting a small portion of the residuals on the song and that he was most likely rightfully entitled to much more. But a contract is a contract.

"Fortunately I had a friend who had spent his career at a major record company and was an expert in copyright law. He told me that at best, Frank was receiving less than half of what Shiny Stockings had brought in over the years. My friend also said that without someone looking into Frank's publishing rights over the past 50 years, winding up with much less than he could have received wasn't surprising.

"But the story didn't end there. My friend had another interesting piece of information: The copyright laws were amended in 1976 to favor authors of works and their surviving heirs. The new law provides that 56 years from the date a work is initially published, the author—or in this case, the composer—can terminate all previous contracts and claim 100% ownership to the rights of their property.

"This termination requires that authors serve notice to the original publishing agents stating that they intend to end the agreement and that they plan to republish the song or works under their own publishing company. The move allows authors to reap full royalties going forward. [Pictured: Frank Foster, seated, and Sarah Vaughan]

"But there was a hitch. The termination has to take place within a specific five-year period, which begins on the 56th anniversary of a song's initial publishing. In addition, the notice has to be sent out two years in advance of the termination date, or it is null and void.

"When I learned of these qualifiers, I immediately went to my copy of Count Basie's April in Paris album, which includes the first published recording of Shiny Stockings. The record came out in 1956. Further research revealed Shiny Stockings' publishing date was March 1956. Hence, the five-year window of opportunity would start in 2012. In order to take full advantage of the situation, however, the termination notice needed to be sent out in 2010. Clearly Frank required the services of an entertainment attorney to draw up the papers. But lawyers are expensive.

"Fortunately I had another friend who had taught at Rutgers University’s law school in Newark, N.J. Frank also had taught at Rutgers—in the Jazz Studies program in the mid-1990s. I reasoned that Rutgers, now the home of The Institute of Jazz Studies, and the university's law school might be interested in helping out. After all, Frank was a former professor, and a positive resolution would certainly cast the university in a favorable light.

"I asked my friend for a law-school contact. He suggested I write a proposal and that he'd forward it to gauge interest. So I did. Soon I received an email from Professor John Kettle, who teaches a course on intellectual property law. He told me that he would urge the Community Law Clinic to work on Frank's case. The clinic is run by law students and takes on pro bono cases of interest to the students. [Pictured: Professor John Kettle (left) of Rutgers School of Law in Newark discusses Frank Foster's copyright issues with members of the Community Law Clinic at The Rutgers School of Law.]

"For two semesters the law students researched Frank's catalog and the ASCAP and BMI registration status of his songs. The students assembled a list of songs that fit into the same time frame. They also wrote the termination notice.

"This past June, Frank signed the notice. As a result, Shiny Stockings along with Down for the Count, Didn't You?, Blues Backstage and Lady in Lace—all registered the same year—were now Frank's property. Going forward, Frank will now collect 100% of the royalties on his classic composition and all the others.

"There's no way of knowing how much money this is going to put in Frank and Cecilia’s bank account. The royalties will be based on future licensing. But the look of satisfaction on Frank's face when he signed the document erased any doubt in my mind of whether this was worth the effort. What's more, it's gratifying to know that by paving the way and getting Frank's story out, other jazz artists and their families will be inspired to claim what is rightfully theirs."

—Brian Grady

Used with permissio by Marc Myers

http://www.jazzwax.com/2010/10/how-i-helped-frank-foster.html