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

[Madman Shepherd]

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. 

But also Mr. Setlist, please don't ignore what I verified in my post (that I overlooked that verification)  

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.

[Adami]

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)"

I'm not sure you know what a lawsuit is.

[DarkLord_Lalinc]

He's a fish. I wouldn't be surprised.

[hefdaddy42]

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)"

Thanks for either not reading or having no reading comprehension whatsoever.

[reo73]

There is no evidence that a lawsuit has been filed, but it sure seems by the tone in that interview that things are not amicable legally between DT and MP and I think speculation on an internet forum is more than valid as long as it is understood that it is indeed speculation.

[Perpetual Change]

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)"

That's not what's going on here at all.

Though I do also agree with the implication. I don't really like how "not speculating" about things is somehow thought to be more mature or something with certain people. Then again, I totally get why there'd be a need for the first post of the thread to actually include factual information that keeps speculation from going off the rails.

[Nick]

The problem is how people carry themselves. It's one thing to speculate. It's another to speculate in a manner that shows you think so much of yourself that your wild speculation is cold hard fact.

[orcus116]

I've found that is more a problem with the interpreter/reader than the person who posts it.

[Perpetual Change]

The problem is how people carry themselves. It's one thing to speculate. It's another to speculate in a manner that shows you think so much of yourself that your wild speculation is cold hard fact.

I guess it depends how seriously you take the situation. I'm a big fan of rampant speculation, but it has nothing to do with thinking too much of myself. It has everything to do with the fact that, at the end of the day, I still remember Dream Theater are a progressive metal band and there's absolutely no need to get so fired up about what someone says or BS's about the situation band or its members. It's all entertainment!

[GasparXR]

The problem is how people carry themselves. It's one thing to speculate. It's another to speculate in a manner that shows you think so much of yourself that your wild speculation is cold hard fact.

I guess it depends how seriously you take the situation. I'm a big fan of rampant speculation, but it has nothing to do with thinking too much of myself. It has everything to do with the fact that, at the end of the day, I still remember Dream Theater are a progressive metal band and there's absolutely no need to get so fired up about what someone says or BS's about the situation band or its members. It's all entertainment!

Disagreed. It's art.

[PetFish]

I'm interrupting this thread to say how proud I am of myself for just not getting involved in any of the drama over this.  I skim the threads but don't think about them cuz it's just all so blown up and ridiculous.

I'm happy cuz my head is clear of all the he-said-she-said garbage and can just look forward to what matters... the music.  I suggest the same to any of you, I think you'll be happier.  Thanks.

[DarkLord_Lalinc]

DO I LOOK UNHAPPY

[GasparXR]

DO I LOOK UNHAPPY

We all are unhappy. ADTOE isn't out yet.


Except Blob. He's happy.

[Madman Shepherd]

PetFish is right.  Everyday I hate myself more and more.  I can't even pick out canned soup at the grocery store without thinking that if I was Mike Portnoy I would be tweeting about it.

And then there's James and he's all OH CANADA and yarrrrrr

But my Dungeons & Dragons character based off of Jordan is wicked awesome.  I get all the Elf chicks.

But seriously, I hope you weren't serious in that post....were you?  If not, I commend you because that was wicked sarcasm and I commend you on the commendation of yourself.  It's commendable. 

[ResultsMayVary]

I'm very interested in how this will play out. I'll wait for any official press releases or statements before I discuss anything on this topic.

[Zook]

Music is an art form created and used for entertainment.

[GasparXR]

Music is an art form created and used for entertainment.

Used for entertainment /= entertainment.

[BlobVanDam]

I'm very interested in how this will play out. I'll wait for any official press releases or statements before I discuss anything on this topic.

What's the bet we never hear any official statements on this? It's in-band legal stuff, not stuff we're entitled to know about. Unless it really is something drastic that affects the band, but I'm not too convinced of that at this stage.

[ResultsMayVary]

I'm very interested in how this will play out. I'll wait for any official press releases or statements before I discuss anything on this topic.

What's the bet we never hear any official statements on this? It's in-band legal stuff, not stuff we're entitled to know about. Unless it really is something drastic that affects the band, but I'm not too convinced of that at this stage.

If we don't hear anything, then that's good. If we do hear something, then it's something that the band needed to inform the fans of. Preferably, I hope I don't hear what this is all about, as that likely says whatever the issue was, that is was handled behind closed doors or resolved without too much trouble.

[KevShmev]

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.  

Agreed.  JLB wouldn't say that they are past wishing him well in the future unless some of the behind the scenes stuff has gotten pretty ugly. 

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.

Okay, but does intent matter?  Portnoy may have recorded them for his own personal collection, but once he started selling some of them and started making money off of them (and we have to assume that the band was making money off of them, too), then it becomes a whole different thing, right?  It's a whole matter of an artist having a right to their own music, even live.  A few years back, Prince covered Radiohead's Creep live, and even thought it is a Radiohead song, Prince got away with having the song pulled from the internet because it was his performance.  So, by that same standard, every thing of DT's that Portnoy has was just as much the other members of the band's as it was his, and since it was a DREAM THEATER performance, the recordings should now go into the hands of someone who has a legal right to the name, which we have to assume that Portnoy no longer has.  In a sense, even though he was a member of the band at the time, he isn't anymore, so by leaving he not only gave up his membership in the band, as well as probably any legal rights to the brand/name, but also the rights to hold on to recordings or material that is technically Dream Theater's.  Again, I don't think intent matters. 

[The Dark Master]

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.

Regarding the live performances, I was referring more to the legal technicalities of releasing recorded live material on CD/DVD rather then simply the performance of said material.  Obviously Dream Theater can play whatever the hell they want live, but if they want to release any live performances of material from the Portnoy era, they will have to pay him royalties because he co-wrote almost all of those songs.  Since he is not in the band anymore, it will be much more difficult for the band and Mike to decide precisely how Mike will get payed for recorded live performances of those songs, which is probably part of this whole thing.

As for YtseJam, I have no idea how that is going to factor into this legal haggling.  Mike obvious can't release any of the DT stuff without their express permission.  As for whether or not he wants to is a bit debatable at this point.  Even after the band turned down his attempt to rejoin, he was still talking about releasing more YtseJam boots.  Then, when he tried to get into contact with the band to discuss this, he only got to talk to their lawyer instead.  There is a distinct possibility YJR is one of the key issues on the table in all this, because Mike seemed very enthusiastic about the whole YJR project and sharing all that stuff with the fans.  Even if he is not in Dream Theater, it's still a huge part of his life, and I'm sure he still has some stuff in his vaults he wants to release.  In fact, I never heard any indication that the other guys in the band even cared about YtseJam, so I don't think that they would necessarily have a problem with him continuing YJR, but with Mike no longer a member of DT, he cannot simply release more bootlegs on a whim.  He would need to work out a agreement with the current members of the band.  Hence the legal issues.

[bosk1]

stuff

1.  As has already been pointed out, you completely missed the point.  Try again.
2.  I don't really care whether you like the way I run my forum.  And a word of advice.  When someone let's you come to their house for a party, walking up to your host and criticising the way he or she runs their household is generally considered rude and will quickly get you thrown out.  You might want to think on that metaphor just a bit.


Anyway, back to the topic at hand, since I said I would try to add a bit more.  Keep in mind for just a moment that Dream Theater is not simply a "band."  Since they are signed to a label and have a lot of money flowing through the band that supports the bandmembers and others, the band is an actual corporation.  So try to think of the band in those terms for a moment rather than the bands most on the forum may be involved in where you play in your garage and maybe do a gig every now and then, but you don't have a huge income stream and don't go through a major label.  When someone simply quits the band in a less formal band setting, there usually isn't much to fight over and there are no lawyers involved because there isn't much there to fight over.  As Kev said, when you leave the band, you aren't entitled to anything that belongs to the band.  The legal doctrine of youquitus yougetnothingus generally applies. 

In a corporation, it is different.  New York's online corporations registry does not list the officers, directors, and shareholders of corporations, unlike a lot of other states.  However, I can say with a pretty high degree of certainty that Mike Portnoy was an officer, director, and shareholder of the corporation.  Whenever you have an officer and owner of a company depart, it is VERY common to have lawyers involved to negotiate the departure and the rights of all the parties.  Unfortunately, that is just the way it works.  That may or may not have happened back when Kevin or Derek departed the band, but it also seemed like both were willing to quickly and quietly depart.  In Mike's case, he has been part of the band since day one, so I'm sure he feels entitled to some things (I'm not debating whether or not he "should" feel entitled to anything; I'm just saying he probably does).  For these reasons, whenever a band has been around a long time and has had any degree of success, lawyers are almost always involved in negotiating the rights of the band and the departing member.  Again, the way the system works, it is practically necessary.

Add to that equation all the extra things DT did for fans that Mike was involved in.  Again, whether or not you or I feel he is entitled to anything for that is not the point.  The point is, it complicates the situation and complicates the "negotiations" when you have someone like Mike leaving.  Sure, the other band members could have done a lot of the things Mike did.  But the point is that Mike actually did them and likely feels entitled to something (money, rights, whatever) for that.  And the difficulty is not only coming to an agreement over what he is entitled to, but also in even figuring out how to even assign a value to it.  Not that it can't be done.  But, again, it just makes things more complicated.  And even if the split were pretty amicable, you have different parties who have different interests.  Mike is looking out for Mike's interests; DT are looking out for DT's interests.  That's all perfectly natural. 

So taking all that into account, it should be no surprise whatsoever that lawyers are involved.   Of course they are.  Again, that doesn't mean a lawsuit (there currently isn't one). 

As far as who lawyered up first and why, who knows?  We know Mike said he was surprised when DT's lawyers responded to him instead of the band responding directly.  But that doesn't really tell us the whole story.  Again, keeping in mind that lawyers are practically necessary in a situation like this, it may simply be that DT decided it was in the band's best interests to get the lawyers involved in the process right away to make sure everybody's rights were properly protected.  Once the lawyers are involved, it usually isn't really proper for the parties to have direct contact with one another until the situation is resolved.  So it would be natural for the lawyers to tell Mike for contact to go through them and not the band.  Again, maybe that sucks, but that's the normal process.  And if that is what happened, it also is likely that Mike simply took it the wrong way and didn't understand why his longtime friends appeared to not want to speak directly with him.  Unfortunately, sometimes the legal process has the unintended consequences of getting in the way of a quick, peaceful resolution even though that kind of resolution is what everyone is looking for.

Anyway, I throw all this out there to shed some light.  Feel free to speculate about what is going on.  But, again, keep in mind that we really just don't know. 

Oh, and I will say one other thing that just popped into my mind.  I know there was some speculation about DT not playing what some might consider "Mike's songs."  Again, we don't know whether that is an issue or not.  Personally, I doubt it, but it's possible.  Given what I know about the legal process and its impact on negotiations, here's what I think may be a likely situation:  DT, their lawyers, or their management may think that playing some songs might be a sensitive issue, for whatever reason.  Whether it should be a sensitive issue isn't really the point, but if there is a realistic possibility that it is a sensitive issue, a smart thing to do to help the negotiations go more smoothly is just to decide not to play those songs for awhile until the dust settles.  No need to further fan the flames when people are trying to work out bigger, more important issues.  That kind of thing also happens all the time.  Let's say, just for argument's sake, that Mike really felt strongly that ACOS is much to personal to him to have DT play it without him, and that was a big, emotional issue that was causing the negotiation of other things to get bogged down because of Mike's focus on this side issue.  In that case, even if the band felt strongly that they should be able to play it, it would be smart for them to just say "okay, for now, we just won't play it so we can put that issue to rest and focus on the things that matter."  I could envision something like that happening, because that sort of thing happens in negotiations all the time. 

Anyway, again, hopefully this helps shed a little bit of light from a legal perspective.

[bosk1]

So...was my post so long that it ended up killing all discussion? 

[ariich]

I've found that is more a problem with the interpreter/reader than the person who posts it.

Indeed, but the point remains that as good as the intentions may be of the person who makes the speculation, others WILL end up interpreting it as fact and spread the rumour further, until lots of people end up with the assumption that it is true. And that is what we are trying to avoid.

[Adami]

So Bosk, maybe I read your post wrong............but what you seem to be saying is that MP is currently suing DT for their name because he feels he is the band, right?

[bosk1]

So Bosk, maybe I read your post wrong............but what you seem to be saying is that MP is currently suing DT for their name because he feels he is the band, right?

  No, not at all.  What gave you that impression?

[phentalmyst]

sarcasm fail?

[Adami]

So Bosk, maybe I read your post wrong............but what you seem to be saying is that MP is currently suing DT for their name because he feels he is the band, right?

  No, not at all.  What gave you that impression?

I just read between the lines, I judged your message based off tone and and my knowledge of you as a person and just ignored the words you wrote.


Isn't that what we're supposed to be doing here?

[3xodus]

I haven't read all of the responses to this post yet so if someone has already mentioned this I appologize. I'm willing to wager that the main issue is future profits made by DT... The way Portnoy has gone on record as saying, "I built that band" and things of that nature makes me assume he wants some sort of pension-ish compensation for their continued popularity. That is something that, to me, is a massive gray area that only a judge would be able to figure out for the band. I can't say I blame him, and I can't say I agree with him, if that is indeed the case.

[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)"

I'm not sure you know what a lawsuit is.

Okay, then what else is going on? Lawyers, "legal issues", more lawyers? Are you trying to tell me that money ISN'T involved?

[phentalmyst]

https://en.wikipedia.org/wiki/Lawsuit

A lawsuit or (less commonly) "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint. If the plaintiff is successful, judgment will be given in the plaintiff's favor, and a variety of court orders may be issued to enforce a right, award damages, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes. Although not as common, lawsuit may also refer to a criminal action, criminal proceeding, or criminal claim.

just because lawyers are involved and there MAY be money at stake, that doesn't mean there's a lawsuit by definition. it has to go to court, in front of a judge, to be deemed a lawsuit. IE: my divorce involved $$ and lawyers, but we settled without going to court. therefore, no lawsuit. a lawsuit happens when the 2 sides can't agree on the terms...i think.

[Jaq]

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.

My ex-girlfriend is in her last year of law school. You may be onto something after all...

[millahh]

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.

My ex-girlfriend is in her last year of law school. You may be onto something after all...

and my wife is one...so, yes.   

[hefdaddy42]

Okay, then what else is going on? Lawyers, "legal issues", more lawyers? Are you trying to tell me that money ISN'T involved?

Did anyone say that money wasn't involved?

[yeshaberto]

bosk is suing DTF?