- Recent Articles
- Christmas music available in the Tuff City digital store Tired of corny holiday mall music? Download fresh Christmas soul, funk, R&B, rap, latin, disco, rock, and jazz, curated from the Tuff City archives. Christmas Music from Tuff City ...
- Original version of "Detroit, Michigan" (as covered by Kid Rock) for sale from Tuff City Kid Rock has covered the song "Detroit, Michigan" by The Fabulous Peps (who are represented by Tuff City) on his new album Rebel Soul. Hear the original version of this Detroit Soul anthem: Download the "Detroit, ...
- Read More Articles
Tuff City Settles Suit; Wardell Quezergue Emerges as the Biggest Loser
Lawyers Win, Artists Lose
Tuff City announces it has settled its longstanding lawsuit with Wardell Quezergue and Joseph ‘Smokey’ Johnson (hereinafter Wardell) for $115,000, making its first payment of $75,000 on February 24, 2011.
While this should have been applauded as the latest in a long list of very substantial payments by Tuff City for New Orleans artists (Willie Tee for example earned over $100,000 with Tuff City), Wardell’s share was much smaller than it should have been. He may have had to have given up half what was due him in legal fees. In a court ordered settlement conference, the dollar figure Tuff City paid him was the one it had been offering for eight years, but this lawsuit persisted, piling up the cost of legal representation because Quezergue's law firm Eveline, Davis & Phillips (hereinafter Eveline) asked for more than twice that. Eveline’s strategy was a risky long shot, but win-win for his own interests, gambling that an unsubstantiated sum of money, more than double what was due, could be won solely by demonizing Tuff City Records and its president Aaron Fuchs and hoping that by stalling for eight years the atmosphere it was poisoning would leak from the street into the judiciary. That Wardell became a charity case in the eight years this case dragged on seemed not to be a consideration.
This strategy could be dared to be undertaken only in the wake of Katrina in which New Orleans’ institutional memory was decimated as surely as its life and property. How else to explain the seizing of the narrative as ‘good guys’ by lawyers who had for the previous forty years been the chief counsel for the convicted artists rights thief Marshall Sehorn. Sehorn was nationally disgraced when he was found guilty in a lawsuit by Universal Records that charged him with licensing out a range of Chess artists, like Chuck Berry and Muddy Waters, to his partner in crime, the French based Charly Records who after their conviction moved to the Cayman Islands to avoid prosecution. Sehorn was also sued by the Meters for the non-payment of royalties and in fact at the time of his death was still in litigation with Zigaboo Modeliste that had gone on for decades. Eveline had even ignored Quezergue’s best interests before, during a 1994 lawsuit that Eveline had filed on behalf of Earl King against Watch Records over the legitimacy of a third writer’s claim to the authorship of “Big Chief.” Though Quezergue had been listed as a co-songwriter since the song’s release over twenty years earlier, during the course of these proceedings Quezergue was induced to sign an agreement withdrawing his writer share and he has not been given writer’s credit since. "Big Chief" has gone on to become one of New Orleans' biggest copyrights. Whether the docile Quezergue has ever been an honestly informed party in his dealings with Eveline remains a matter worth questioning to this day.
By contrast, my history with New Orleans, which began in the late 70s, was one of support and advocacy. In the late 70s, writing for both the trade press (Cashbox) and consumer press (The Village Voice), I was an extremely early east-coast flag waver for the New Orleans comeback that Jazz Fest was spearheading.
In the early 80s I made the transition to label owner, forming Tuff City Records to participate in the birth of New York’s hip-hop scene, which gave me both financial success and a place in music history. I also formed Night Train International as a reissue label for music that had to that point been deemed too obscure for labels like Rhino. New Orleans was a treasure trove of this kind of stuff. By releasing dozens of albums like New Orleans Popeye Party, The Best of Sapphire, and Huey ‘Piano’ Smith; The Imperial Sessions, I had the pleasure of being a participant in the post-Jazz Fest renaissance of New Orleans music. I did not take a break from running Tuff City sufficient to return to Jazz Fest until the late-80s when I discovered that a hip-hop instrumental I had produced, “The 900 Number” by The 45 King (possibly the biggest instrumental in the history of the genre), had become so popular locally that it had been integrated into the brass band repertoire. I realized that the gap between New Orleans music, particularly that which was deemed to be “too New Orleans,” i.e. too Afro-Caribbean, and the rest of the world had been narrowed by hip-hop, and I moved the focus of my reissues to the soul and funk periods of New Orleans that had previously been completely ignored by reissue labels save for the occasional ‘hit’ that that period produced.
Two artists that were special to me were Wardell Quezergue and Willie Tee. When I first came to New Orleans these artists were deep in the downside of their careers. Tee was doing cocktail jazz at the Holiday Inn as the Will Turbinton Trio and Quezergue was picking up the occasional local vanity project and leading the band at Jazz Fest’s Dew Drop Inn Revisited.
Yet, each had had a career vastly richer than met the general public’s eye. With Tee’s jazz-funk project, the Gaturs, and a series of New Orleans funk anthologies, Funky Funky New Orleans Vols. 1-5, I reissued a body of local funk music at a time when the world thought the Meters were the whole iceberg.
With Quezergue, the project became all the more consuming because of the sheer heft of his work. Though Quezergue had built labels like Malaco on his back without anything to show for it, there was a big body of worthy local work that he had the legal right to have ownership interest in and I set about collecting it with an Indiana Jones-like zeal. The scope and character of this work contributes to Quezergue’s inscrutability. All of Quezergue’s music was grade A, whether he was doing it for Nola, a label he was a partner in, or Chuck Simmons, a man who he made records for in exchange for body and fender work, or Mode Records, a label owned by Nola partner Ulis Gaines designed to shield participation from his partners, ONE OF WHICH WAS QUEZERGUE HIMSELF. This relationship should have raised a red flag about Quezergue. When speaking about Gaines who intercepted an overwhelming amount of Nola's and therefore Quezergue's royalties, Quezergue's voice lowered to a whisper, forefinger over mouth, in a way I hadn't seen outside of New Yorkers talking about the mafia. It never occurred to me that Quezergue's mild-mannered temperament was part of a personality that included docility.
What mattered to me though, in a powerful way, was the wonderful, underappreciated music I had access to. Tuff City was the first company to assign to Quezergue an auteur’s imprimatur on two different genres of music, soul and funk, even beating the British to this assignation. For the soul era, Night Train reissued almost the entire body that Quezergue did on the Nola group of labels. There were well north of 100 of these. Albums like Wardell Quezergue’s Sixty Smokin’ Soul Senders’ and Wardell Quezergue’s Funky, Funky New Orleans gathered material mostly from Quezergue’s Wharf label, all of which elevated Quezergue as auteur above the artists he produced. Tuff City even threw commercial considerations aside by anthologizing the only artist he had a hit with, Robert Parker, by titling the album Robert Parker The Wardell Quezergue Sessions (when the rest of the world titled it by its hit "Barefootin'"). Finally, Don’t Be No Square, Get Hip to Quezergue, a retrospective of obscure yet worthy productions that span 25 years, existed solely so that people could know how his last name was pronounced (Its Creole spelling so confused people that Quezergue himself in the early part of his career produced under the name Larry Martin). Look at the history books and tell me that Tuff City was not responsible for the elevation of Quezergue's stature in history from a two line mention to an icon.
But this advocacy was not limited to generating feel-good sentiments. I paid Quezergue well for the privilege of pulling dead rats off the tape boxes in tool sheds in backyards in New Orleans East. In the music business, the price you pay for copyright purchase is a multiple of ten to fifteen times their average earnings over the past three to five years. For Quezergue, this would have been zero, yet I paid him tens of thousands of dollars.
Another project Tuff City determined the world was ready for was an anthology of recordings by Smokey Johnson, most of which Quezergue had produced. Though Johnson had had a local hit with “It Ain’t My Fault,” he never had another and with Nola’s collapse a couple of years later, these and the seven other singles I anthologized to create the Smokey Johnson album had been commercially unavailable for thirty years and some barely available even back then.
When it came time to promote and market these albums I took extra pains to reach a new generation of hip-hop and DJ music fans. I created albums that looked like they had come out of the 70s and distributed them in an esoteric network of stores in which rappers, DJs, producers, and mixers shopped. The results were fast and furious. Never before had the gap between a record’s availability and it’s inclusion as a sample on a big record been achieved in record time. Within a year the lyrics to “It Ain’t My Fault” wound up on an album by an artist in the Master P stable, Silkk the Shocker (without authorization), and a track on the Gaturs album “Concentrate” was sampled in Sean ‘Puffy’ Combs’ elegy to the Notorious B.I.G., “Do You Know” (with authorization). I had succeeded in generating pay days for New Orleans rhythm and blues artists, the likes of which had not happened in decades. No one but I was investing in recordings of that era not produced by Allen Toussaint and in the entire music business, no one but I was able to earn income for New Orleans R&B artists during a brief window in which the record business was rich and able to sustain the cost of paying for samples. But, the difference in how I was shown gratitude by Tee and Quezergue are stories as different as night and day.
In the case of Willie Tee, his lawyer Henry Burnett of the firm Owen & Davis maintained a professional but even tempered contact with us and in the course of 18 months we paid Willie over $105,000, for which he had to subtract only modest legal fees. Katrina notwithstanding, he was able to live out his life in a more moneyed way than he ever had. By contrast, on June 24, 1999 Eveline orchestrated lawsuits by Quezergue against both Tuff City and No Limit, blocking Tuff City's ability to collect royalties and giving No Limit a reason not to pay royalties on the grounds of competing claims.
Though yellow journalists like Alex Rawls would give OffBeat readers the impression that this lawsuit was filed because of Tuff City’s failure to pay royalties, the truth is that this was a preemptive lawsuit that had nothing to do with royalties which were many months away from being due. This action was designed to take away all the legal rights Tuff City had to the copyrights and therefore all money it would be earning.
Those who knew Quezergue were shocked that he filed suit and he confided to intimates that he was bullied into it by ‘Smokey’ Johnson and stayed in it because Eveline had told him there was a $200,000 payday in it for him. But though the suit hurt and shocked me as a betrayal, it was more mind blowing in the face of the law. How could he sue me for an unauthorized use of a copyright that was clearly spelled out among those that he and his partners had assigned to me?
The court’s decision, while ruling in favor of Tuff City, still empowered Eveline to fight another day. In the ruling it was determined that Tuff City’s rights to “It Ain’t My Fault” turned on an advance that was paid to ‘Smokey’ Johnson; the Judge supported Quezergue’s weird testimony that even though he had assigned the Nola catalog to Tuff City, it maintained a separate status that only he and Johnson shared in.
Though Quezergue’s personality as a sympathetic character would be used as a magnet for the intensely transferential emotions of those who came to his ‘rescue,’ what Quezergue did when he testified had a vastly different real world effect. By claiming the rights of “It Ain’t My Fault” as his and Johnson’s alone, he threw Clinton Scott, his life-long partner in Nola & Bonatemp (its publishing affiliate), under the bus, depriving him of copyright ownership and income participation. The 82 year old Scott is the sole supporter of a wife who is a stroke victim, and while he has with dignity sustained self-sufficiency, he certainly could have used his share of this money.
Meanwhile, our legal conflict was still unextinguished. While Eveline was tying Tuff City up, there were two developments: first, the Silkk the Shocker track was sampled by the Mariah Carey recording, "Did I Do That," thereby giving the copyright owners of "It Ain't My Fault" a piece of the Mariah Carey copyright, and second, No Limit declared bankruptcy. To relieve itself of its debt, No Limit wrote Mariah Carey’s parent company Sony a letter of direction authorizing them to pay Tuff City up to $295,000 in earnings. At this point Eveline fails to meet not merely the standards of a legal professional but that of a high school graduate, and takes the position that up to 290 means 290, and demands this of Tuff City. Since this was an impossible demand for Tuff City to meet, the negotiations stood at an impasse. So, shortly thereafter, Eveline then filed a second suit against Tuff City, this time for a breach of contract for the $290,000 (in his zeal to shoot first and ask questions later, the second-rate journalist Alex Rawls didn’t even distinguish between these two suits).
Then came Katrina.
In her wake I dispensed cash to people, forgave debts, gave out free merchandise to retailers, gave other retailers 360 day terms, offered solace to dozens of people, gave a 50 CD collection of New Orleans music to the L.S.U. library, and donated thousands of dollars to Sweet Home New Orleans, among other charities. I even made attempts to pay Quezergue directly, but by this time I could not get past the ranks that closed around him.
Then came Ashlye Keaton.
While Eveline and company had been amoral bare-knuckled fighters, they were within the scope of adversaries I’d had in my 40 plus year career; Ashlye Keaton was a different breed of cat. Psychologists say that people who feather their nest at the scene of a tragedy have a need to expiate the tragedy of their own lives, and with the post-Katrina addition of Keaton to the Eveline law team, their legal strategy took a dramatic turn in the direction of a bloodthirsty witch hunt in which the assassination of my character and my personal demonization became paramount. But a closer look at Keaton reveals that carrying the burning cross of artist’s rights is the way she enriches her business. In a New York Times article, “Want To Use My Suit, Then Throw Me Something,” (in which she takes the inflammatory position that Mardi Gras Indians who are not being paid for photos of them in their suits were being taken advantage of), she was described as “…A lawyer who represents Indians in her private practice, and also works with them through pro-bono legal operation……Sweet Home New Orleans.” This play-both-ends approach to business and charity was also evident in the Wardell suit, in which she paid some legal expenses in this for-profit case with money she received from Sweet Home New Orleans.
Keaton’s bloodthirstiness reached its peak in a July 1, 2009 article in OffBeat that may as well have been written by her, though it was assigned nominally to her water carrier, Editor Alex Rawls. This New Orleans lifestyle publication, which in the twenty three year history to which I was privy has never done reportage and does not have a fact checker, published a lie-filled hatchet job about the suit, “Who’s Fault Is It?.” Through the garble of lies, factual inaccuracy, and horrendous reportage, Rawls’ point was clear: two elderly black men were living in poverty because Tuff City was stalling in its obligation to pay them. Rawls had actually put this to press without even notifying me by telling publisher Jan Ramsey that he had tried unsuccessfully to reach me, even though I have been in regular communication with the publication since its inception. Forced to include my side of the story that Eveline could have brought the case to a head anytime in the past seven years, Rawls buried this info rather than let it upend his five handkerchief story that Tuff City was victimizing these two artists.
While this well poisoning was going on, Eveline chased other ambulances (he sued and lost cases against Juvenille and others in this period) while Quezergue cooled his heels, becoming increasingly a charity case. Finally bringing the case to a head, he asked for a motion for “partial” summary judgment in August of 2010 for $200,000 still, which in lay terms meant Tuff City would have to pay $200,000 and continue to be liable for additional money.
What each party brought before the Judge Ethel S. Julien on January 20 was tantamount to the difference between reality and fantasy. In the settlement conference that she ordered, Tuff City presented a detailed summary of monies owed Wardell and how they were arrived at. By contrast, Eveline came only with the letter of direction from Sony and a series of affidavits rounded up by Keaton from New Orleanians articulating Wardell’s dependence the largesse of charitable organizations while implying that Wardell’s indigency resulted from Tuff City not paying him what they owed him. These signators constituted a rogue’s gallery of ‘haters.’ In this truly twisted scenario, a doofus like Ira Padnos (who has taken a small fortune in government money to build a Ponderosa Stomp brand that is using ever fewer New Orleans artists) also signed an affidavit that I hadn’t paid Wardell Quezergue royalties. Meanwhile, when he produced a Lincoln Center tribute to Quezergue, he personally overturned a decision the Lincoln Center staffers made permitting me to sell my (royalty-bearing) Wardell Quezergue CDs there (to cover the tracks of their hating, they didn’t even permit Quezergue to sell his own contemporary CD there). But, in the most twisted irony of all, a charitable agency like Sweet Home New Orleans, who acknowledged that I paid them thousands of dollars, also signed an affidavit against me effectively supporting a law firm that kept me from paying Quezergue the income that would have kept them (Sweet Home) from having to support him (Quezergue).
Any artist who thinks Ashlye Keaton could do more for them than handle a simple contract needed to be in court when Judge Julien charged her with perhaps the most egregious of charges a lawyer can hear: “You are taking this too personally.”
As a term of settlement, Eveline demanded and received from Tuff City a check made out to himself (Eveline) as head of a trust fund that he had set up for Quezergue. I urge New Orleanians of good will to “follow the money” on this so as to safeguard the hapless Quezergue from even more predation, for in this matter, as he has so often been in the past, he was the biggest loser.