When the Writ HITS THE FAN!

Phil Dwyer with Phil Tripp

Sydney: 40Watt Marketing Pty Ltd July 2004, distributed by Immedia

Reviewed by Lindy Morrison

When the Writ HITS THE FAN! is a “30 year journey through Australia’s contemporary music industry by a lawyer who was there”.

The book is written by Phil Dwyer (the lawyer) with Phil Tripp (music industry ringmaster). Tripp wrote the forward, cajoled the stories from Dwyer, edited and published through one of his companies. In spite of this, the book is Phil Dwyer’s.

I attended “the on the road sell the book” tour that Tripp orchestrated when the book was first published. Tripp and Dwyer sat on the Enmore stage in Newtown Sydney, as Tripp said too much as usual and Dwyer too little.

Dwyer is not the typical corporate lawyer you see around the music industry. There is a small group of outsider lawyers who work around the traps, eccentric and unconventional. Dwyer looks like he spent the night on the couch and came to work in the same crumpled clothes. He was shy on stage but convincing enough for me to buy the book at the gig.

Unfortunately not many music industry lawyers have written books about the music industry. Obviously they are still looking for a gig. The text book bible is the massive and mighty tome Music Business written by Shane Simpson and Colin Seeger 1994 and Simpson’s revised edition 2002. This grand book is not for the fainthearted, but for those wanting an academic analysis of industry systems and copyright law.

Dwyer’ book ostensibly is a bunch of his memories and stories about his clients, the cases he was engaged to deal with as a solicitor. It is a very humorous/tragic deprecatory commentary on his life in the music and film industry between 1975 and 1985.

Don’t underestimate the book, the book is much more than this. For those who are keen on this sort of thing, the reader will learn a lot about scenes behind the Australian music industry. Dwyer discusses the history of the music industry in fast and furious detail, and describes in conversational style the roles of the industry players. The chapter about litigation is aptly titled “They can’t do that” and he gives compelling reasons not to litigate. He discusses the four tests to take before an artist should even consider litigation. There is no fifth, “How could they do this to me?”.

He writes what’s obvious commentary, “Forget about the scales of justice being evenly balanced, they are not and never have been”. Sharon O’Neill would know this. CBS Productions Ltd v O’Neill 1985 ended with no winners and O’Neill‘s career in tatters.

With chapter headings like “Talk to my Manager” he discusses cases involving the tales of Fenner, Brenner and Braithwaite, and Barker and The Models. In “Kylie is a T Shirt” he slips in lots of information about image, merchandising and personal endorsements with a digression to discuss his involvement unhappily with the St Kilda Football Club and AFL. There are too many music industry court cases he was involved with about defamation, publishing, recording contracts and plain pig headness that reinforce his point that it is often pointless to litigate.

He manages to get real stuff into the random approach in his writing style. He covers the most important dilemma facing bands working in the industry, the disparity in incomes between songwriters and others in the band. He points out how the law protects income for songwriters but not for musicians and that record contracts being what they are: “The great majority of Australian groups never receive any artist royalties from record sales. Most artists remain unrecouped through the recording careers. They rely almost entirely on performing and welfare.” Dwyer is fair and is adamant that songwriters should retain control over the commercial exploitation of their works.  He offers alternative methods like internal band agreements which share the mechanical royalty with non composers.

In fact in the back of the book are all sorts of sample contracts, partnership and management agreements, publishing and recording heads of agreement as well as an extensive glossary, footnotes and bibliography.

One of my favourite parts in the book is a section dedicated to setting tricky scenarios regarding the ownership of works and then he provides the answers as defined by law. Any teacher or student working in IP would do well to read the Bricks and Mortar chapter, e.g. “An advertiser wants to use a recording of a hit song in a commercial. Can any one member of the group which recorded the song, stop that use?”

Through out the book, he covers business name registrations, trademarks, incorporating a company, publishing income, and hidden catches in recording contracts. But what makes this all so readable is his constant chit chat and references to cases and clients. It’s gossip and fact, interesting mix.

A chapter is devoted to a tour of the Northern Territory where he is supposed to deliver workshops on copyright. He learns more from the indigenous communities and comes away with a new found respect for communal ownership of rights (not a right in law) and he highlights the difficulties of reconciling copyright law with Aboriginal customary law.

I often wondered about the elder statesmen in the industry (there are only a handful of women who have survived), where it began for them and what happened along the way to make them what they are. It’s in the book. He drops names as frequently as Tripp buys his Hawaiian shirts (frequently). Neatly described is who fell out with whom and why and who took sides on which issue. Sometimes it’s torture, reading about the Men at Work saga, the implosion of the group, their arduous touring and the struggle over royalties but on the other hand it’s fun to read about Dwyer’s exploits with Glen Wheatley.

His inside description of the dealings around the PSA inquiry into the price of sound recordings 1990 is overwhelming. Dwyer was representing the ACTU in preparing and making a submission. He presents a sorry picture of the relationships between all the players in this inquiry. He discusses how performers (non-composers) had a chance to gain some rights and were abandoned. His pictures make sense of the recording industry failure to stop the repeal of the parallel imports legislation. He also discusses in detail the Universal Music Australia Pty Ltd  v ACCC 2003 court cases where Universal were found to be guilty of an abuse of exclusive dealing following the repeal of the legislation.

For me the beauty of the book as it will be for all of the readers who skirt around the fringes of the commercial music industry, is to read an entirely different perspective from a person who isn’t aligned to publishers, record companies, managers or legal firms and  because of that can unravel quite a few mysteries.

Music Forum Vol 11 No 4