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Ask A Lawyer - Are Death Grips Screwed?

Ask a Lawyer

By Noisey Staff

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If you’re reading this, you’re probably familiar with the pickle that the Sacramento band Death Grips have found themselves in, but just in case, we’re gonna summarize. Death Grips signed to Epic Records, which confused everyone including Death Grips, because Death Grips are punk as fuck and Epic, which is a subsidiary of Sony, is pretty much The Man. Then, Death Grips canceled their tour so they could work on a record that they subsequently put out for free without the label’s consent. Following that, they leaked a personal email from an executive at Epic that asked them to remove the record from the Internet and that they were going to put the record out so the label could at least make a little bit of money on it. They leaked it by posting the email in question on their Facebook, with the commentary of, “HAHAHAHAHAHAHA NOW FUCK OFF.” Yesterday afternoon, Epic announced plans to sever ties with the group for good.

As for who’s winning in the case of Death Grips vs. The Man, well, that all depends on which court you’re hearing the case in. In the Regional Appellate Court Of Fucking Awesome, Death Grips wins all day. But what about Real Court? We’re not lawyers, but we found a lawyer and asked him: Now that they’ve continually flipped off their label to the point where they dropped them, are Death Grips totally screwed?

NOISEY: You’re familiar with what’s been going on with Death Grips, right?
LAWYER: Yes, I am.

Do you think they’re putting themselves in any kind of danger with their actions, especially like leaking their major label record?
They definitely violate the terms of their recording agreement. I haven’t seen their recording agreement but just guessing…Actually, not guessing. Any recording agreement will assign the underlying copyright and masters to the label therefore the band no longer owns those masters and the record label has the rights to distribution, so just like any third party that would not be able to distribute it--they were in possession of it because they recorded it but they didn’t not have the right to make copies and publicly distribute it.

They violated copyright law and they violated the terms of their agreement so their record label could sue them. It’s also most likely a breach of their recording contract, so their record label could terminate their agreement and keep them from making money off future albums and just leave them at this point.

Well, is it Death Grips’ responsibility--because their label says there can be no secondary distribution--to make sure no copies of the record exist?
If you aren’t the person who has distribution rights in a piece of music you’re not allowed to distribute it no matter what. With or without Death Grips being the leak you can’t then subvert the rights that belong to the record label just because you have possession of the content.

It’s like a Napster situation where Metallica can sue certain fans, certain users. It wasn’t that they uploaded that Metallica song, they just downloaded it from someone else, but they’re still liable.
Well, copyright protects the right to make copies. It’s a bundle of rights: distribution, copying, making derivative works, and many other rights. Two, that we’re talking about now is copying and distributing. You can’t make a copy other than for personal use and then publicly distribute it without being the person or entity that has those rights.

One thing about the record label: the record label guys’ letters said ‘once we clear all the samples we’re going to release the record,’ which implies that there were uncleared samples on the leak. What are the legal implications of that?
That means that Death Grips could be liable for copyright infringement. The label didn’t intentionally release it so most likely they’re not liable.  Even if the label is sued by copyright owners, there’s probably indemnification language in their agreement that would cover the label though, because Death Grips committed a breach of contract. Typical identification language states, “If we’re sued because you breached this agreement then we could push all the costs of defending ourselves and any kind of liability that results from that, onto you.’ They weren’t intending on releasing it until they cleared all the samples, therefore, if the label was sued from an owner of the sample or if Death Grips is sued, I think the liability would primarily fall on Death Grips.

Death Grips originally leaked their album after Epic wanted to push the release date back, that was the impetus for them saying ‘fuck it,’ we’re putting it out now.
Knowing the way that a band like Death Grips operates, they probably didn’t tell them about all the samples that were included. They were probably being pretty guerrilla about, you know? They’re weren’t giving them cue lists of every little piece of sampling used. So maybe the label found that there were more samples to be cleared, but that’s just speculation.

Also the fact this is all behind Epic: If Epic owns the masters and Death Grips has now put out songs with illegal samples, wouldn’t the people that own those samples want to sue Epic immediately?
Yeah, but the label didn’t intentionally release it, Death Grips did. So it would be tough to pursue the label.  Also, that’s why I brought up the indemnification language. Indemnification language allows you to push the liability to the person who breached the agreement, if that resulted in your liability. If Epic were to be held liable as a result of Death Grips’ breach, Death Grips is responsible to defend, hold harmless, and account for any kind of damages that Epic suffers as a result of their breach

So the chain of lawsuits would go something along the lines of… a third party who owns some kind of piece of music that was sampled illegally, they sue Epic and then Epic sues Death Grips?
Well they [Epic] may have to defend themselves in that lawsuit, they might have to hire an attorney and they may lose that lawsuit, but then they’ll be able to sue Death Grips under the identification language--which is undoubtedly in their recording agreement-and under the letter of the agreement for all costs incurred.

Is there a possibility that this is a publicity stunt?
Yes, there’s a possibility.

Is it legal to pretend to be taking legal action?
Like if they were in cahoots with the label to do this spectacle?

And they made it look like they were in trouble?
I can’t think of a cause of action that would result in legal action, not in this situation. Maybe some sort of defamation by lying about the lawsuit by saying something untrue about a third party that wasn’t compliant with that kind of conspiracy, so maybe that person could have some sort of abstract defamation claim but that seems unlikely in this situation.

Could you give us a ballpark figure of how much money these lawsuits go for? Is there a range?
They would look to expected profits as a result of being able to premiere that album and the decrease in that number as a result of them leaking it.

This might all be qualified by the terms of their agreement together and what constitutes a “breach” and if there’s any limit on liability but there’s expectation damages, which are also extended foreseeable damages, so I don’t know--there’s injury to their reputation, maybe effects on the touring, and their ability to make money off touring in connection with sales of the album…

How long do lawsuits like this generally last? What they’re doing seems punk as fuck now but if they’re going to be bogged down in litigation for years…
It could be years. Or a year.

That’s not punk. Do you think they’re going to go to jail?
Jail? No.

Do you think they’re going to be fined a million dollars?
They may.

Two million?
I can’t give you an exact number--it would be based on the lost profits. Obviously a percentage of income from their album would have been remitted to them as a royalty under their recording agreement, but still, I don’t know what kind of sales they would be expecting. I don’t think it would be near two million dollars. Hundreds of thousands, perhaps?

Oh my god, they’re fucked.
Well and then there’s the added liability that we didn’t talk about which is a bit more theoretical.

What do you mean “added liability?”
Invasion of privacy and copyright infringement as a result of publishing the email.

There’s two theories for liability when it comes to publishing an email; the first is copyright infringement as emails are arguably protected by copyright--the threshold for originality for copyright protection is pretty low, therefore whoever the representative of Epic that wrote that email could theoretically claim that he has copyright over that email, and though they were the intended recipient, they weren’t authorized to publish the email. In addition to that he could claim it was a violation of his privacy, an intrusion of his selfhood because it disclosed his phone number in conjunction with his name and especially since he’s a high-powered individuals, that ‘s private information that you don’t want everyone to know, so he could suffer harassment, he could suffer annoyance and there’s liability associated with both of those.

But if they’re going to sue them they could, in addition to the copyright infringement, the breach of contract, they can add these invasion of privacy claims and potentially copyright infringement for the email itself--though the email didn’t suggest they were planning on suing.

Can you think of any precedent for that type of invasion of privacy in relation to rock n’ roll?
No.

So, again: They signed to major label, they go on tour, they cancel the tour, they make the record, the label pushes back the date, they leak the record, the label pleas with them to remove from everywhere it’s been distributed, and then they print those emails and curse. What laws have they actually broken there?
They’ve broken civil laws. They’ve committed copyright infringement, breach of contract, invasion of privacy with the email, another cause of action for copyright infringement for publishing that email, so four causes of action I can think of. None of which have any criminal liability, so they’d be sued for money damages not brought to jail.

In your opinion, if there were a trial, would they be found guilty on all four counts?
Undoubtedly they committed copyright infringement for music they don’t own. They’re liable then for copyright infringement for music distribution, liable for breach of contract, liable for invasion of privacy for disclosing that guy’s email address and that private email that contained a disclaimer below his signature, and perhaps liable for copyright infringement for publishing that email.

Do we put them in any danger by publishing this piece?
This isn’t legal advice, this is a casual conversation, I don’t have all the facts in front of me--this is just the casual opinion of an anonymous attorney, so I don’t think this will be very influential.

How much can they actually make them do? It’s so clear that they don’t give a shit about anything--so what happens if they get sued and just don’t pay the label?
You can force wage garnishment, so any money that they make in the future gets paid to you first. You basically become a creditor; you’re indebted to the plaintiff who won the lawsuit.

What about the money off the merch table?
Well, that’s difficult to account for being that it’s all unaccounted cash--but typically you get a lean on future income and the winner of the suit gets paid first, just like the bank if your loan is foreclosed upon.

Do you respect them for what they’re doing or as a lawyer do you think that this is this the most asinine, stupid move they could make?
I think it’s interesting and it’s cool. Is it smart business decision? Perhaps in the long run. But it’s going to be a lot of annoyance to work through in order to keep up that cred.

They’re digging themselves in a hole right now.
Yeah, and there are other ways to go about having fun and being crazy and talking shit about your record label then actually releasing your label’s record. They could have gone on a Twitter rant, they could have written some sort of op-ed piece that was published in the fucking New York Times or something that discusses the hypocrisy of major record labels and what they don’t like about their label, all of that would have been totally fine.

This is extremely reckless.
This is them incurring liability, creating numerous accounts whereby the label is able to sue them, most likely successfully if they wish.

They wanted the record to be free.
No one put a gun to their heads and forced them to sign with Epic, they could have been printing the album in their garage.

Yeah it’s a crazy thing to do. There must be some other motivation behind it beyond just the pushed-back release date.

What are they thinking? The only thing that they could be thinking is that there are uncleared samples that will never be cleared and therefore the record will never come out unless we leak or we made a huge mistake signing with Epic and we’re willing to throw our future away financially in order to sever that relationship as quickly as possibly. How airtight is a record contract when you sign it?
I bet there are more termination rights on behalf of Epic then there are for the band. But that’s assuming that they’re going to be paid so they could say, “Don’t pay us,” and then there would just be a standstill, but this deal most likely demands several albums, so therefore they’re expected to deliver certain albums by a certain date.

Do you think the record might have gotten held up because of the cover? Because of the penis?
If they were arguing that they were unwilling to move forward unless that was the cover and their record label gave them the authority to control the art and there was an impasse there, there’s a chance.

That would also bar a lot of institutions from stocking the record, I’d imagine. Like K-Mart.
Even so, they could have put censorship stickers on the cover.

It’s just such an illogical move it begs so many questions.
It’s so illogical that they even signed with Epic in the first place.

You know what we should do? We should call that number on the e-mail and see if it’s real, if it’s fake, then maybe…Can you call him right now and we’ll record it?
No.

Epic issued a statement that said they were working to terminate Death Grips’ contract. Does that mean they’re currently still on the label?
If they didn’t formally terminate, yes. There’s a termination procedure in contracts they have to follow, so they probably have to issue written notice saying they’re terminating, and there may be some back payments that one party needs to pay the other in order for the contract to officially be terminated.

To clarify: They’ve not been dropped from the label.
Well, it’s a more complicated process than them just making a public announcement, especially in a contract that involves a lot of money, terminating that contract will require a written notice and will usually require some sort of settling up of who owes who money. But they may have sent that notice, so they may have gotten the process started.

So there’s still a possibility that this might be a publicity stunt.
Nobody has any proof that they absolutely terminated the agreement, so there’s still the possibility that it’s a publicity stunt.

This article is for informational purposes only and does not constitute legal advice. It should in no way be taken as an indication of future results, and is not intended to create, and the receipt does not constitute, an attorney-client relationship.

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