Legal issues regarding the DT/Portnoy split - Setting the record straight

[bosk1]

Nothing really "wrong" with the first thread, but it quickly ran WAY off the rails in terms of speculation based on a LOT of false assumptions.  So let's put the facts out there and start again.

Kev, thanks for posting that snippet from the interview.  I will re-post:

This was posted by someone at Portnoy's forum (and I saw it on FB):

Some "interesting" and shocking details on DT/MP split:
Disclaimer:

the following information are taken from the German Metal Hammer and Rock Hard magazine which both came out 3 days ago !
For the parts listed below, I have translated the German text which in itself MIGHT not be a proper reflection of what John P and James have said in English.
I have only focused on some new information not the whole very long interview.
The interviewer(s) seems not to be a pro Mike looking at the question and comments they make.
Last but not least, I am a big MP and DT fan and really hope they will have success with everything they do.
 
----------------
Mike said he likes to take a break, after 5 years or so the band will come back stronger than ever.
When everyone else refused to take the break, he said "ok then I need to quite. I don't feel connected to DT anymore !"
John P did try to convince Mike to stay. The band said that he is doing a huge mistake and the AX7 gig is like a affair and one day he will be overtaken by the reality
Around 8 weeks later, after AX7 and Mike separate ways, Mike has send an Email to DT asking for rejoining, which the band refuses (They had already selected MM and where wondering how in 8 weeks the passion for DT did came back)
 
The interviewer (Metal Hammer) is asking:
"So to take revenge Mike is now suing you for a lot of money, claiming share of ownership of the band's name"
James: It is correct that there are some legal issues which we need to sort out. Fact is that Mike took a lawyer and we have informed ours. We are are not allowed to share more"
John P: at the end theses are some private issues which we should not talk about in public. Fact is we the band own Dream Theater's name/brand
 
Interviewer: It must be a real torture as musician to have to deal with these kind of issues:
James: the times of friendship with Mike, when we where friends and would hug each other and wishing him success for the future are definitively over. He needs to clarify everything via the lawyer now, there no other way. It is unpleasant but he did decide to take this path and now the judges will have sort things out "
John: I don't see a massive issue/deal. These things are part of life, no matter if you are a cookie seller or musician
 
With regards to the new album:
The Interviewer: "The situation for James did not significantly changed. His demand to have more involved in the lyrics was not approved"
James: Well, for this album, I have submitted 3 lyrics but for some reasons only one was picked up. You never know, maybe the other two will be reconsidered next time
 
From Rock Hard:
 
When Huge Syme did create the art work for the album, the working title was "Bridges in the Sky" !!
Later it was changed to "A dramatic turn of events" and the original title which came from the song "The Shaman's Trance" was used to rename the actual song !

EDIT by XJDenton: Because its a point well made and something the users could do with reading before posting, I am adding this quote to the original post:

Man... the degree of pure speculation being treated as absolute fact here is insane.  I'm guessing that their lawyers probably told them to not give any details of the lawsuit(s) and to just to respond that way whenever the issue came up.  If an interviewer says "So I hear Portnoy is suing you for X, Y and Z", and instead of denying it they respond by saying "There are legal issues, but we can't talk about them", that doesn't necessary mean X, Y and Z are correct just because they weren't denied.  It's possible that it just means they can't talk about it.

Here is what we KNOW:

1.  Obviously, DT and MP split.
2.  There are (or were) "legal issues" between the two sides.

Some misconceptions that need clearing up:

1.  There is almost certainly NOT a lawsuit going on.  For one thing, the interviewer asked of there is a lawsuit.  The band responded that there are "legal issues."  They did not say there is a lawsuit.  Second, lawsuits are all a matter of public record.  If there was an actual lawsuit filed, it would be very easy to find out.  Just because there are legal issues, it does not mean there is a lawsuit going on.  We knew there were legal issues a year ago, remember?

2.  There is no evidence Mike is trying to just get money from the band.  Sure, he likely wants what he considers his "fair share," and the band may not agree with whatever Mike thinks that is.  Given all the extra side things Mike did, it gets really complicated, so it should come as no surprise that the two sides may disagree over who gets what.

3.  There is almost certainly no dispute over use of the Dream Theater name and no threat of DT not being able to use it.

4.  There is probably no threat over using songs where MP wrote the lyrics.

I'll post more later, but from a legal and factual perspective, since this site is a huge source of DT info on the 'Net, I thought it important to carefully post what we do and what we don't know out the outsset of the discussion rather than have it lost among 10 pages of unfounded rumors. 

Discuss.

[Super Dude]

Let me just say I'm glad our forum's Sith Lord is a lawyer.

[BlobVanDam]

JP said "I don't see a massive issue/deal. These things are part of life, no matter if you are a cookie seller or musician".

This suggests these are the typical business issues, that happen from any split or falling out, and nothing out of the ordinary (and possibly nothing to do with the music side specifically).

JLB says "the times of friendship with Mike, when we where friends and would hug each other and wishing him success for the future are definitively over. He needs to clarify everything via the lawyer now, there no other way. It is unpleasant but he did decide to take this path and now the judges will have sort things out".

This could imply one of two things imo.
Either
1). Their unhappiness with MP comes from him expecting more than they feel is reasonable (whatever the "legal issue"), hence the need for lawyers, or
2). their unhappiness with MP comes solely from the fact that he has cut off contact with the band and any way of resolving this in a friendly manner is not possible, thus the involvement of lawyers for what are common business issues.

We have heard first hand from JR that he has tried to contact MP, and he got no reply. That would support option 2, although it does not exclude option 1 either.

That's about all I can say based on the new revisions to the thread.

[Madman Shepherd]

Regarding MP and Ytsejam Records, I wonder if the lawsuit could also have to do with Mike keeping all of the recordings.

Heres the thing, even though the rest of the band didn't have interest in keeping the archives of all the sessions and shows, that type of property is owned by the band.  For the same reason that people are not allowed to film a live show and post it on youtube.  Obviously people do and bands and record companies have become lenient towards that, but DT at any time could take any live clip, file a complaint with youtube and it would have to be taken down because the band owns that performance and any representation thereof (including pictures with the exception of someone who has permission to take pics for promotion or reviews, etc)

So technically part of the lawsuit could ask for the transfer of all DT related material or to compromise they could ask for copies.  I'm not saying I think that is what is happening but...if MP really did forfeit his right to the name, if they wanted to go that far they probably could make him turn over all that stuff. 

[Adami]

Well this thread should be fun. First post states that there's no lawsuit, and the third post already assumes there's a lawsuit and starts making up what it might be about.

[EuropaEndlos]

complicated stuff, and everyone has something to say about it...  Thanks for clearing it up bosk.

Like I said yesterday, have to wait till the outcome occurs to really understand what is happening. 

[Setlist Scotty]

Regarding MP and Ytsejam Records, I wonder if the lawsuit could also have to do with Mike keeping all of the recordings.

Heres the thing, even though the rest of the band didn't have interest in keeping the archives of all the sessions and shows, that type of property is owned by the band.  For the same reason that people are not allowed to film a live show and post it on youtube.  Obviously people do and bands and record companies have become lenient towards that, but DT at any time could take any live clip, file a complaint with youtube and it would have to be taken down because the band owns that performance and any representation thereof (including pictures with the exception of someone who has permission to take pics for promotion or reviews, etc)

So technically part of the lawsuit could ask for the transfer of all DT related material or to compromise they could ask for copies.  I'm not saying I think that is what is happening but...if MP really did forfeit his right to the name, if they wanted to go that far they probably could make him turn over all that stuff.  

Remember, there is no lawsuit! Legal proceedings, yes.

That said, part of the issue (maybe the whole thing) could be about MP's archive of material as it pertains to YJR. I have no idea myself. But I do question your point of whether those recordings are owned by the band or if they are owned by MP. Case in point - if I was to go to one of their concerts and make a bootleg recording, that is MY recording - it is not owned by the band, even tho it is a recording of them. Of course legally they could stop me perhaps from distributing it (especially if I were to sell it, which I never would do with a bootleg recording), but they couldn't simply take the recording away from me, nor force me to make a copy for them. So I'd think the same thing would be true here - they probably could prevent MP from selling those recordings on his own, especially if he didn't share the profits, but I don't think they can demand him to turn over the tapes or make copies. I'd love to see someone with a legal background (Bosk, Samsara, etc) weigh in on if the rest of the band has any ownership of the recordings. Unless proven otherwise, I don't think so.

[Elaitch]

Well this thread should be fun. First post states that there's no lawsuit, and the third post already assumes there's a lawsuit and starts making up what it might be about.

I know, right?

[Madman Shepherd]

Well this thread should be fun. First post states that there's no lawsuit, and the third post already assumes there's a lawsuit and starts making up what it might be about.

Because there is no room for speculation here.  If you want to speculate, go to Wall Street.  If you want to kill a few minutes on the internet by saying something on your mind, this apparently isn't the place for that (?!?!) 

I'm not trying to bicker here, but I just don't get why every thread seems to have someone chime in and state how they think the thread should go.  I clearly stated my opinion, a thought that I had, and that is that.  This isn't going to derail the topic, the band, or the rotation of the Earth.

Admittedly, I did not read all of Bosks first post because I thought he just copied and pasted the first post from the other thread.  Oops.

if I was to go to one of their concerts and make a bootleg recording, that is MY recording - it is not owned by the band, even tho it is a recording of them. Of course legally they could stop me perhaps from distributing it (especially if I were to sell it, which I never would do with a bootleg recording), but they couldn't simply take the recording away from me, nor force me to make a copy for them.

Again, I'm no legal expert but I am almost positive when it comes to intellectual property like concerts, they do have the right to confiscate a tape or make you erase it, especially when the recording is from an indoor private venue.  Will they kick down the door of your house to come get it if you sneak out?  Probably not unless you were running a big bootleg ring but if they wanted to, I honestly think they legally have the right to do that before you exit the venue. 

When cassettes and VCR tapes first came around there was a huge issue about whether people could make copies of a new album or whatever.  The courts declared you can make one copy for your personal use and that is it.  Technically tape trading is illegal.  Has it ever been enforced?  Not to my knowledge.  You really aren't even supposed to make a photo copy of a part of a book and give it out to your friends without permission of the publisher and paying a royalty. 

So of course, when it comes down to it this is all just speculation and again I'm simply procrastinating taking a shower and getting going for the day so it's not I'm on pins and needles about whether I am right or even close, but intellectual property is a HUGE grey area.

[hefdaddy42]

I'm pretty sure that a concert performance wouldn't be considered an intellectual property at all.  I mean, I'm sure that an artist probably does have some legal recourse to prevent unwanted taping, but I don't think it is tied to IP.

[TheOutlawXanadu]

Usually I'm on the side of the speculators, but in this case, I'm not.

I don't think this is as big a deal as everyone is making it out to be.

[ElliottTamer]

Let me just say I'm glad our forum's Sith Lord is a lawyer.

I thought every Sith Lord was a lawyer...

[hefdaddy42]

Let me just say I'm glad our forum's Sith Lord is a lawyer.

I thought every Sith Lord was a lawyer...

Well, most lawyers seem to be affiliated with the dark side, so you may be on to something.

[LieLowTheWantedMan]

This is pretty insane. Hope it's nothing too big.

[KevShmev]

That said, part of the issue (maybe the whole thing) could be about MP's archive of material as it pertains to YJR. I have no idea myself. But I do question your point of whether those recordings are owned by the band or if they are owned by MP. Case in point - if I was to go to one of their concerts and make a bootleg recording, that is MY recording - it is not owned by the band, even tho it is a recording of them. Of course legally they could stop me perhaps from distributing it (especially if I were to sell it, which I never would do with a bootleg recording), but they couldn't simply take the recording away from me, nor force me to make a copy for them. So I'd think the same thing would be true here - they probably could prevent MP from selling those recordings on his own, especially if he didn't share the profits, but I don't think they can demand him to turn over the tapes or make copies. I'd love to see someone with a legal background (Bosk, Samsara, etc) weigh in on if the rest of the band has any ownership of the recordings. Unless proven otherwise, I don't think so.

Okay, but in regards to all of the official bootlegs that are sold at YJR, I doubt Portnoy personally made those recordings himself.  I mean, he was on stage playing, so how could he?  Odds are that the band either hired someone to record them or acquired them from someone, to sell and make money for themselves.  If we are going to assume that all financial gain that had been made on those bootleg recordings prior to last September went to the band as a whole, not just Portnoy, then wouldn't the assumption be that the band owned them?  And thus, since Portnoy is no longer a member of the band, he no longer has a right to hold on to all of those recordings, right?  Granted, he would still have the right to royalties when and if the band would start selling them again, but I can't see how it would be his call anymore.  Just guessing here...

[ariich]

Depends on whether the band hired someone or MP hired someone. I agree with Scotty's general point, and so that detail makes a pretty fundamental difference.

[hefdaddy42]

From what I understand, MP set up ADAT machines to get direct soundboard feeds from the shows.  That is how the majority of his private live recordings, several of which have become YJR releases, were done.

[Mbarak]

Pure speculation...

I can see MP regarding himself of more ownership over songs/royalties than JP, JLB, JR and JM believe so. I don't think it's coincidence that JLB stressed in a recent interview that JP and JR are the writers DT's recent catalog, not MP. On the other hand, we keep hearing MP lament on DT being his baby, and how he did "everything" for DT.

Also I'm not with those who say MP's greedy, how dare he...etc. In business/legal issues with parties of opposing interests, this difference of opinion/tension is bound to occur. I gotta say though, both parties (MP and DT) are keeping civil so far. They are both keeping it on the down low until, hopefully soon, both come to a mutual agreement on these issues. I still have respect for all of them and think they're mature and wise enough to realize that, although such issues are painful and may take time, at the end the only way is for both parties to make some compromises so that everyone's leaves the partnership happy.

[fadetoblackdude7]

All I'm gonna do is state the obvious: When MP left DT, he left everything behind. When you leave a band, everything you've contributed to the band, stays.

It's like Slash leaving GN'R and saying "Oh, you can't play 'Welcome to the Jungle' because I wrote that riff." No, that doesn't fly.

All I'm saying is, MP shouldn't sue over anything because he CHOSE to leave the band.

[Nick]

From what I understand, MP set up ADAT machines to get direct soundboard feeds from the shows.  That is how the majority of his private live recordings, several of which have become YJR releases, were done.

Exactly. Perhaps in later years MP had someone to kind of do this for him, but for the majority of DT's career MP recorded all their shows to his personal DAT.

[SnakeEyes]

I completely understand what bosk said about there not being a lawsuit.  However, what if MP is THREATENING the other guys with legal action having to do with the name or the use of his lyrics?  Maybe he's just being a jerk and saying, "IF YOU GUYS DO THIS, I'LL....."

[volwrath]

With regards to the new album:
The Interviewer: "The situation for James did not significantly changed. His demand to have more involved in the lyrics was not approved"
James: Well, for this album, I have submitted 3 lyrics but for some reasons only one was picked up. You never know, maybe the other two will be reconsidered next time

Personally I thought this was the most interesting of all the comments.

[millahh]

What's most illuminating about the whole thing actually has nothing to do with the lawsuit...it's how JLB and JP approached it.

JLB seems to be very sore at MP...that seemed to be hinted at in other interviews, but was very clear here...like he was glad to be rid of MP, and there was resentment/bitterness there.

JP was a tight-lipped as possible, and the tone I get is "this unfortunate, but this is the way things are".  Seems like he wanted to get away from anything potentially controversial or divisive as quickly as possible.  I don't detect any bitterness there at all.

Of course, this is all based on very rough translations, but it's the feeling I get.  And honestly, I can understand why both of them would feel the way they do.

[KevShmev]

I think the two most telling comments, assuming the translation is accurate, are:

Petrucci saying, "Fact is we the band own Dream Theater's name/brand."

Why would he say that, unless there had been some discussion or disagreement over the rights to the name.  JP has been very gracious and diplomatic in his comments regarding the split, but that is very much of a protective statement, like, "No matter what has happened, we own the Dream Theater name." 
 
And James saying, "The times of friendship with Mike, when we where friends and would hug each other and wishing him success for the future are definitively over. He needs to clarify everything via the lawyer now, there no other way. It is unpleasant but he did decide to take this path and now the judges will have sort things out "

What has Portnoy done to make JLB have said that?  

[BlobVanDam]

I think the two most telling comments, assuming the translation is accurate, are:

Petrucci saying, "Fact is we the band own Dream Theater's name/brand."

Why would he say that, unless there had been some discussion or disagreement over the rights to the name.  JP has been very gracious and diplomatic in his comments regarding the split, but that is very much of a protective statement, like, "No matter what has happened, we own the Dream Theater name."  
 
And James saying, "The times of friendship with Mike, when we where friends and would hug each other and wishing him success for the future are definitively over. He needs to clarify everything via the lawyer now, there no other way. It is unpleasant but he did decide to take this path and now the judges will have sort things out "

What has Portnoy done to make JLB have said that?  

JP mentioned they own the band name because the interviewer mentioned it in the question. JLB said they couldn't talk about the legal issues, so why would JP immediately reply to that particular part of the statement unless he was in the clear to do so? ie, it has nothing to do with the legal troubles at all. He pretty much dismissed that as far as I'm concerned.

And for JLB, I suggested two reasons in the other thread before it was locked. Either-
1) It's because MP is requesting something unreasonable with these legal troubles, which is why he's had to bring lawyers in. Or
2) It's simply because MP has not communicated with them directly since the split. JR has said he's tried to send emails to him and got no reply. JLB could be upset that MP has resorted to lawyers rather than keep it friendly.

[ariich]

I think the two most telling comments, assuming the translation is accurate, are:

Petrucci saying, "Fact is we the band own Dream Theater's name/brand."

Why would he say that, unless there had been some discussion or disagreement over the rights to the name.

Or possibly because the interviewer had asked about MP "claiming share of ownership of the band's name"? He was answering the question to set the record straight (quite possibly, nay even probably, simply to try and ensure that any fans/readers don't start worrying about the band losing the name), not just bringing it out of the blue.

[SnakeEyes]

I suspect MP and LaBrie have had issues for a while.  I truly believe that the whole "firing LaBrie" thing came from Portnoy.  Of course, I haven't read the "Lifting Shadows" book, so maybe you people who have read that book know more than me.  But, that's just the first thing.  The second thing is - a few years back, Portnoy publicly said in an interview that he's basically tired of LaBrie's style of singing and, if he had to choose another singer, he'd pick someone completely different.  If I were LaBrie, that would have pissed me off very much.  

[RuRoRul]

Looking at the question I'm inclined to agree with ariich (and others who have said before) that JP was just answering the question that MP was trying to claim some ownership of the band's name. If he had just brought it up like others have said then I would be more on board with the idea he was shedding some light on the nature of the legal problem, but it looks as though the only reason he mentioned the DT name / brand is because the interviewer said something about it. If he was bringing it up as a way of saying what it was Portnoy was trying to get and what they were defending, he probably wouldn't have said that we can't talk about it. That's the part that this being a translation of a translated interview hurts the most - if we heard or read the original it would probably be more clear that it was the interviwer that brought it up and JP's answer was more along the lines of "We're not going into specifics but that's not the issue being debated".

[millahh]

I think the two most telling comments, assuming the translation is accurate, are:

Petrucci saying, "Fact is we the band own Dream Theater's name/brand."

Why would he say that, unless there had been some discussion or disagreement over the rights to the name.

Or possibly because the interviewer had asked about MP "claiming share of ownership of the band's name"? He was answering the question to set the record straight (quite possibly, nay even probably, simply to try and ensure that any fans/readers don't start worrying about the band losing the name), not just bringing it out of the blue.

What I'm picking up on here is what he didn't say...which is that it's a non-issue.  He could have said "this is a non-issue, we own the name and that's not something that's in dispute".  But instead he said something that sounds like an assertion.

It may be (and very likely is) nothing, but those couple of words could have put it to rest before it became a huge discussion.

[BlobVanDam]

To me JP's response implied it was a non-issue, although it's hard to tell the tone from a translation of a translation in text.

[GasparXR]

Now wait a minute man.

Excellent post for clarification.

All I have to say is that these issues, whatever they may be, are resolved peacefully and everyone can move on happifully, or at least satisfied.

[The Dark Master]

Just to reiterate my stance from the other thread, I really do not think this is about the name.   The interviewer made the assumption that Mike was trying to take revenge on the guys by suing them for ownership of the name, to which JP responded "there are some legal issues" (not a lawsuit; as bosk, a lawyer, has pointed out, it would be on public record, and there would be no need to speculate on weather or not there was a lawsuit) and also going on to say "the band owns the name", after he had said that he could not talk about the legal issues, thus pretty emphatically stating that the legal troubles are not about the name.  Between all this and the fact that they have a new album coming out next month, which has not been postponed in any way, I really don't think the Dream Theater handle is going anywhere.

What I think this is about is the songs, and various issues related to them.  From what I can discern, since most of the songs are credited to the band (or the four instrumentalists), Mike and the band all have legal claims to those songs.  In addition to royalties and publishing rights, this means two things:

1)  If Dream Theater or Mike Portnoy play a DT song from 1985-2010 at a concert, and then record the performance for a live CD/DVD, then the performer would need the permission of the other party to do so, and may need to monetarily compensate them as well.  I'm sure a good part of the legal issues revolves around clearing this matter up, so that DT can play their back catalouge freely, and record such performances for live releases, without having to go through Portnoy every time they want to do so.

2) Mike's huge stash of Dream Theater bootlegs is now an issue, because he can no longer release that material on YtesJam records on a whim.  He now has to go through lawyers and the current lineup of the band to get permission to release the official bootlegs.  This can get complicated, because the band can claim ownership of the original demos, since they were recorded together as a band for band purposes.  I'm not sure about the live boots, though, as it could be argued that Mike primarily recorded those for his own personal collection, and then later decided to sell them to the fans.  In either case, since Mike is not in the band anymore, he can't sell any of his bootlegs unless he has been officially contracted by the band to do so.  I imagine a big part of their current legal discussions involves the possibility of drawing up some sort of contract.

Either way, it really just sounds like sorting out the fallout of the split, specifying little particular details so that everyone gets treated fairly, while still allowing the band to fulfill their responsibilities to the fans as entertainers.  I'm sure it's not exactly pretty or fun for Mike or the band, but I highly doubt it is the sort of thing that would have a major impact on how Dream Theater operates.

[ReaPsTA]

Just to go off what KevShmev and Millah were saying about JP and JLB's reactions, it's hard for me to believe this is just legal wrangling over money.  It sounds more contentious.  The whole "let the judges decide" thing implies that if it isn't a lawsuit (which is totally possible, since there's no public record), then at the very least an arbitrator might be involved.

[Setlist Scotty]

Well this thread should be fun. First post states that there's no lawsuit, and the third post already assumes there's a lawsuit and starts making up what it might be about.

Because there is no room for speculation here.  If you want to speculate, go to Wall Street.  If you want to kill a few minutes on the internet by saying something on your mind, this apparently isn't the place for that (?!?!) 

The whole thread is really speculation. BUT when something is verified as a fact (there IS NO lawsuit), then don't ignore that when presenting your thoughts. 

if I was to go to one of their concerts and make a bootleg recording, that is MY recording - it is not owned by the band, even tho it is a recording of them. Of course legally they could stop me perhaps from distributing it (especially if I were to sell it, which I never would do with a bootleg recording), but they couldn't simply take the recording away from me, nor force me to make a copy for them.

Again, I'm no legal expert but I am almost positive when it comes to intellectual property like concerts, they do have the right to confiscate a tape or make you erase it, especially when the recording is from an indoor private venue.  Will they kick down the door of your house to come get it if you sneak out?  Probably not unless you were running a big bootleg ring but if they wanted to, I honestly think they legally have the right to do that before you exit the venue. 

When cassettes and VCR tapes first came around there was a huge issue about whether people could make copies of a new album or whatever.  The courts declared you can make one copy for your personal use and that is it.  Technically tape trading is illegal.  Has it ever been enforced?  Not to my knowledge.  You really aren't even supposed to make a photo copy of a part of a book and give it out to your friends without permission of the publisher and paying a royalty.

While it is true that a band has the right to kick me out of a venue or force me to turn over my taping rig while at the concert, what I have recorded is my recording and they wouldn't have any legal recourse (that I'm aware) to take my recordings away from my possession.

Regarding making copies of legitimately released products (albums, books) and making copies of them, that's a completely different argument that has nothing to do with our discussion on who has a right to access of MP's archive.

Okay, but in regards to all of the official bootlegs that are sold at YJR, I doubt Portnoy personally made those recordings himself.  I mean, he was on stage playing, so how could he?   Odds are that the band either hired someone to record them or acquired them from someone, to sell and make money for themselves.  If we are going to assume that all financial gain that had been made on those bootleg recordings prior to last September went to the band as a whole, not just Portnoy, then wouldn't the assumption be that the band owned them?  And thus, since Portnoy is no longer a member of the band, he no longer has a right to hold on to all of those recordings, right?  Granted, he would still have the right to royalties when and if the band would start selling them again, but I can't see how it would be his call anymore.  Just guessing here...

While it's true that MP didn't hook his DAT machine up to the soundboard himself or press "Record" at the beginning of the show, HE was the one who made arrangements with their sound guy to record the show, NOT anyone else in the band, and it was for HIS personal collection, NOT for a band archive intended for release at a later time. That a handful of these recordings have since been released under YJR is beside the point. MP likes to have recordings of all his performances and that has nothing to do with money at that point. If it were like Metallica or Pearl Jam, where the intent from the get-go was to record every show and then sell them as official bootleg recordings, then you might have a point. Even with regards to what has been recorded since YJR came into existence in 2003, only a few of those recordings have been released, so really even all those recordings were really for MP's personal collection; again, had the band intended to release all those recordings at a future time, then the rest of DT might have more legal recourse to those recordings.

All I'm saying is, MP shouldn't sue over anything because he CHOSE to leave the band.

He's not suing, nor is DT suing him.

I think the two most telling comments, assuming the translation is accurate, are:

<snip>

And James saying, "The times of friendship with Mike, when we where friends and would hug each other and wishing him success for the future are definitively over. He needs to clarify everything via the lawyer now, there no other way. It is unpleasant but he did decide to take this path and now the judges will have sort things out "

What has Portnoy done to make JLB have said that?   

<snip>

And for JLB, I suggested two reasons in the other thread before it was locked. Either-
1) It's because MP is requesting something unreasonable with these legal troubles, which is why he's had to bring lawyers in. Or
2) It's simply because MP has not communicated with them directly since the split. JR has said he's tried to send emails to him and got no reply. JLB could be upset that MP has resorted to lawyers rather than keep it friendly.

I do have to wonder if MP has resorted to using lawyers since it appears that DT first started to use lawyers. When MP tried to get back into the band, he reached out to the guys and tried to patch things up, but according to him, the only response he got back was from DT's lawyer. Honestly, I understand why DT may have opted to have the lawyers respond. That being said, MP very well could have reasoned that "since they are using lawyers to handle everything between me and them, from now on I better do the same thing" and has shut off all communication with them (which would explain why JR's e-mails have remained unanswered).  I don't know for certain, but it seems to be a reasonable explanation.

<snip>

The second thing is - a few years back, Portnoy publicly said in an interview that he's basically tired of LaBrie's style of singing and, if he had to choose another singer, he'd pick someone completely different.  If I were LaBrie, that would have pissed me off very much. 

What you said about MP's feelings on JL's style of singing is true (which also would explain why none of MP's current projects have that style of singing at all). Not sure on JL's response, but I agree that it would be hard to accept.

What I'm picking up on here is what he didn't say...which is that it's a non-issue.  He could have said "this is a non-issue, we own the name and that's not something that's in dispute".  But instead he said something that sounds like an assertion.

It may be (and very likely is) nothing, but those couple of words could have put it to rest before it became a huge discussion.

That is true, but to be honest, when you're doing an interview and you're spontaneously being asked questions, your not giving thought to the fact that every little word that comes out of your mouth is gonna be scrutinized by your rabid fanbase on an Internet forum. So I think the lack of those words is nothing significant.

Just to reiterate my stance from the other thread, I really do not think this is about the name.   The interviewer made the assumption that Mike was trying to take revenge on the guys by suing them for ownership of the name, to which JP responded "there are some legal issues" (not a lawsuit; as bosk, a lawyer, has pointed out, it would be on public record, and there would be no need to speculate on weather or not there was a lawsuit) and also going on to say "the band owns the name", after he had said that he could not talk about the legal issues, thus pretty emphatically stating that the legal troubles are not about the name.  Between all this and the fact that they have a new album coming out next month, which has not been postponed in any way, I really don't think the Dream Theater handle is going anywhere.

What I think this is about is the songs, and various issues related to them.  From what I can discern, since most of the songs are credited to the band (or the four instrumentalists), Mike and the band all have legal claims to those songs.  In addition to royalties and publishing rights, this means two things:

1)  If Dream Theater or Mike Portnoy play a DT song from 1985-2010 at a concert, and then record the performance for a live CD/DVD, then the performer would need the permission of the other party to do so, and may need to monetarily compensate them as well.  I'm sure a good part of the legal issues revolves around clearing this matter up, so that DT can play their back catalouge freely, and record such performances for live releases, without having to go through Portnoy every time they want to do so.

2) Mike's huge stash of Dream Theater bootlegs is now an issue, because he can no longer release that material on YtesJam records on a whim.  He now has to go through lawyers and the current lineup of the band to get permission to release the official bootlegs.  This can get complicated, because the band can claim ownership of the original demos, since they were recorded together as a band for band purposes.  I'm not sure about the live boots, though, as it could be argued that Mike primarily recorded those for his own personal collection, and then later decided to sell them to the fans.  In either case, since Mike is not in the band anymore, he can't sell any of his bootlegs unless he has been officially contracted by the band to do so.  I imagine a big part of their current legal discussions involves the possibility of drawing up some sort of contract.

I agree that the band name is most likely a non-issue. Regarding whether DT can perform songs MP's been involved with (and I would state that is all of them, not just the ones he wrote lyrics to), I think this is also a non-issue. Anyone can perform a song, be it the original band with a different line-up or, a previous member or someone completely unrelated - it's just that whoever is performing the songs will have to pay a performance royalty to those who wrote the song.

An example of this would be the band Supertramp - Roger Hodgson was once a member of that band, and he wrote (I believe usually by himself - no co-writers) many of Supertramp's biggest hits. He left the band due to Rick Davies (the other main guy)'s wife being involved in managing Supertramp; he and Rick Davies agreed that he would keep his songs, and Davies would keep the band name but would not perform his (Hodgson's) songs. While Supertramp did for a brief time abide by his request, after a period of time, they began performing his songs again. AFAIK, Hodgson has no legal recourse against Rick Davies/Supertramp other than to make sure that he is paid his royalties. I believe that same thing would be true here, if MP insisted that some/all DT songs he was involved with writing not be performed by DT in the future.

Regarding MP's archive of DT material, I highly doubt that MP will be the one wanting to release recordings and having to get the band's permission. If his archive is in fact part of the legal issues, then it would most likely be the band wanting to release (or at least have in their possession) the recordings MP has.

[atalkingfish]

What the heck is up with this admin? I'm new here, but I've been on a LOT of forums and I've never seen a ratio of forum success:admin entitlement. Seriously. Lock a thread here or there, make stupid remarks, get pissed. It's annoying and I've seen it a TON, especially given that I've been active here for a very short amount of time.

You can't have a thread like this where the ONLY bit of information is "It is correct that there are some legal issues which we need to sort out. Fact is that Mike took a lawyer and we have informed ours. We are are not allowed to share more" and say that the resulting conversations are "too much speculation"

Seriously, what else is there to talk about? Non-speculative stuff? What's the point of discussing with people when the first time anyone says anything that isn't 100% fact, it gets locked up and put into the "you cannot talk about this" vault. Seriously.

That's legal talk for "Mike wants money from us and we cannot say anything, so we'll say this because technically it's not saying anything"

Such a pointless.. GRAH!

Seriously. Duh, of course Mike is either suing, trying to sue, or thinking of suing. There's nothing else he could be doing. How often does a legal conflict occur that involves two sets of lawyers that DOESN'T INVOLVE MONEY. Never. What else would people want? Something like "I want DT to mention me in every one of their shows"? Yeah, totally.

If you're gonna censor every not-100%-fact post, you might as well lock all the posts relating to "I think I'm going to like (insert track from ADTOE here)"