Tuesday, March 29, 2011

Bralalalala's Fight on Scammers in the Music Business

NOW MAGAZINE ARTICLE TORONTO, CANADA (ALSO SEEN ON CANADIAN NATIONAL TELEVISION CBC)
     n e w s f r o n t


       
Record label's sour note
Why are budding musicians pissed off at producer Mark Berry?
By SCOTT ANDERSON

It's Friday night at the Warehouse, and Toronto's reigning alternative rock band, I Mother Earth, are delivering a charged homecoming set.

BERRY PRO AND CON
"What really mattered to us were the connections that someone like Mark Berry would bring to the project."

­ Fewtrils of Fey manager Eric Brolund


"The hard costs of producing the record album were false and highly inflated."

­Bralalalala's lawsuit against Mark Berry

Stoked kids bodysurf over the pulsing crowd as guitarist Jagori Tanna weaves his tight riffs through drummer Christian Tanna's heavy, bongo-assisted beats.

With three albums under their belt, IME have a major record deal, fame and critical acclaim -- every aspiring Canadian band's dream.

Way back when the hard rockers had stars in their eyes, they found their way to a crafty but well-connected musical producer named Mark Berry.

The producer, a transplanted New Yorker who landed in T.O. via the UK and Australia, counts IME as one of his personal triumphs.

But it's a cruel industry -- something Berry knows all too well. He had a messy falling-out with IME just as the group hit the big time back in the early 90s. At issue was a demo he'd produced that helped the band land a lush U.S. record deal. He threatened to sue, and in the end they settled.



Savvy producer
But while he's been party to a string of industry successes, this is far from the last controversy dogging Berry's musical initiatives.

It's a business of fly-by-night deals, corporate advances that evaporate into expenses, fickle markets and tender egos. So perhaps the crowd of musicians out there who've had dust-ups with the savvy producer should just accept that this is the way things are in the land of the big dream.

On the other hand, maybe this cloud of bitterness that follows him around has something to do with Berry's controversial and unusual joint-venture production scheme.

Some might say the arrangement offers new talent a foothold in a difficult industry. Others call it trouble.

The young musician who initiated a lawsuit against Berry last week certainly had his own version of what their business dealings were all about. Then there's the ongoing police investigation now collecting tales of woe from bands Berry took under his wing but who fell crashing back to reality with only master tapes in hand and thousands of dollars poorer.

***

Mark Berry has had a long and impressive career. Years ago he worked as an apprentice under the legendary Beatles producer George Martin in London. He worked on Live And Let Die, Paul McCartney's soundtrack for the movie, and told a magazine he "felt like he had emptied every ashtray known to man before the end of that one."

In the 70s, he produced pop acts for the folk label Vanguard Records, specialized in 12-inch remixes of popular hits in the 80s and later did a stint as a producer for hire in Australia, working with famous pop acts including Pseudo Echo.

According to his CV, Berry has had a hand in "numerous number-one and top-10 singles."

Since arriving in Canada in the early 90s, he's produced records for a number of notable artists, including Burton Cummings, the Killjoys, Voivod and the Headstones.

But in the last couple of years he's focused on signing young, largely unknown acts to his small independent label Attack Records and Filmworks, a division of another Berry entity, A-Rabian Music Group Ltd.

Berry, who has been a producer-mentor at the NOW-affiliated North By Northeast musical festival, sees himself as a nurturer of emerging talent -- partnering with artists on whom the major labels are not prepared to gamble and scouting out new talent around the world.

(For the record, my brother-in-law formerly worked as an in-house engineer at a Toronto recording studio where Berry often books his bands.)

When Berry is attracted to a group, he often proposes a joint-venture-financing contract. The artist is asked to put up as much as (U.S.) $25,000 to make a record, and Berry's company contributes the other half.

Major labels almost never do this. But some bands are more than willing to enter this arrangement to get their record out.

If Berry and his New York manager, Steven Scharf, can't in the end successfully shop the artist's record to the majors, Attack will distribute and market the album and even set up a publishing deal.

For the Winnipeg band Fewtrils of Fey, this was a fabulous opportunity. They entered a joint-venture agreement with Attack and recorded in Toronto last winter. The band is excited about the final product and is waiting for the label to release the record.

Says Fewtril's manager, Eric Brolund, "We said the amount of money that's being put in to produce this record is rather high. (But) the way we saw the value equation is, it doesn't really matter what the actual studio costs are.

"What really mattered to us was the connections that someone like Mark Berry would bring to the project. You don't want to nickel and dime somebody who could possibly make your career."



Cop probe
The Toronto band Blasternaut, which has already released one record with Attack and recently recorded its second with the company, also say they were enticed by Berry's networking abilities.

Says Ted Lamont, the band's lead singer and guitarist, "Our main reason for initially going with Attack was to get product and take advantage of the international contacts we can get through them."

Many who've had close contact with Berry praise his professionalism. Brad Nelson, an engineer with Berry for five years and now chief engineer at Great Big Music studios in Toronto, says the producer knows the business inside-out.

"He taught me lots about how to deal with a gig from top to bottom," says Nelson. "He's a great businessman. He gave me a lot of openings to learn how to survive."

With so many in the industry singing his praises, it may seem strange that he's evoked so many bad feelings with his joint-venture experiment. Is the man a saviour for bands invisible to the big labels or is there something more?

Certainly, many of the hopefuls who have gone into the studio with Berry to kick-start their careers have been left embittered.

NOW has interviewed a number of musicians who allege inflated studio costs and unfulfilled contractual promises. These charges have piqued the interest of Toronto police, who are investigating complaints about the activities of Attack Records, according to detective Stephen Bone of the criminal investigation bureau at 52 Division.

Bands like Toronto's Maybrick, Australia's Gellyfish and New York's As It Is were just some of the groups NOW spoke to that undertook joint ventures with Berry and Attack in the past.

They all say they put up thousands of dollars to go into the studio. But after they recorded, the relationships seem to have fallen apart.

"When he first met with us, we were just starting out, and he totally gave us the snow job," says Christin Maling, former keyboardist in Maybrick. "Basically, (he told us) our dreams were coming true as an up-and-coming band. He gave us this huge portfolio of people he's worked with over the years."

According to Maling, the band, which came together at university, put $20,000 into a joint-venture production deal. A master was completed, but he says they didn't sign a record deal and eventually put a record out themselves.

Trace Allen of As It Is says his band also came up with (U.S.) $25,000 for a joint venture with Attack and recorded in Toronto a year ago. The band is still waiting for its CD to be released. According to Allen, the group's lawyer has notified Berry that he's in breach of contract.

"Right now we're basically out of it," says Allen. "It's an issue of getting our masters and getting our money back." (Berry's lawyer, however, says As It Is and the label couldn't agree on a release date.)

Berry declined to be interviewed in person for this story. Instead, he faxed back answers to 17 written questions NOW had prepared.

And he does provide a lawyer to answer further queries. But, strangely, the lawyer doesn't want his name used in this story.

"Attack joint ventures are specifically designed to sign artists that we believe have the potential to be major-label artists but have not realized their full potential," Berry explains.



Prima donnas
"The advantage is that artists who would otherwise not be signed to a major label will have their record produced by a producer with a major-label track record, then have it released and marketed by a company that is passionate about their work."

Attack's current roster includes six rock artists, two dance artists and two drum-and-bass artists. According to Berry, the label tries to release one record per quarter.

Of course, the music industry is hardly without its prima donnas. Could all this just be temperamental artists bitter over the fact that, despite their best efforts and after spending all that money, they couldn't cut it?

That's exactly what Berry's media-shy lawyer chalks it up to.

"One of the pitfalls of the music business is that artists like to blame everybody else for their non-success, when the reality of the situation is that a great artist with a master (recording) of Mark Berry's quality will get noticed," he says.

The lawyer also responds to questions regarding a statement of claim recently filed against Berry in Ontario superior court by a disgruntled U.S. musician.

Skiles, the lead singer in the hard-rock band Bralalalala, came to Toronto last April to cut a new record with Berry. The two had entered into a joint-venture contract that required each party to put up (U.S.) $25,000.

Not long after the Californian arrived in Toronto last spring, however, the deal fell apart and relations between the two turned nasty.

In June, immigration officials who'd learned that Skiles had overstayed a visa and was asked to leave the country.

At the same time, Berry brought allegations of harassment to the police. He alleged that after the label dropped Skiles for not producing any material, Skiles left disturbing faxes and phone calls at Berry's home and office.

"After I decided not to produce his record, Skiles left insulting and racially disdainful telephone messages for me at my work, my home and on my e-mail at all hours of the day and night," alleges Berry, who is Jewish.
Skiles was later allowed back into Canada, and attended an immigration hearing in August. Skiles was granted a visitors visa that expired at the beginning of this month.



Charges dropped
The criminal charges against Skiles have since been dropped.

"There wasn't any evidence of a threat," says police detective Bone, "something that would cause a reasonable person to fear for their safety or the safety of another."

In the statement of claim filed in Ontario superior court, Skiles is seeking a nullification of his contract with Berry as well as $25,000 in damages for malicious prosecution.

Although Skiles never put up any money or went into the studio to record, Skiles alleges in the claim, which hasn't been proven in court, that "the hard costs of producing the record album were false and highly inflated."

Skiles also alleges in the claim that despite the Attack deal being represented as a joint venture between the artist and the company, "only the artist was contributing $25,000 U.S. as required by the payment provision in the agreement, as the producer A-Rabian Music Group Ltd. was required to write a cheque to itself, as contained in the small print of the Agreement."

The suit also alleges that "as a result of Skiles' refusal to perform the contract or agree to a gag order as demanded by Berry, Berry commenced a malicious campaign to smear Skiles' reputation."

Berry's lawyer dismisses the claim and says Skiles is no longer bound by any contract with Attack.

"Bralalalala's been dropped in writing, and these claims are usurious and really for the purpose of grandstanding only," the lawyer says.

Strangely, the claim has so far not been served against Berry.

And when asked why Skiles is seeking nullification of a contract that Berry claims has already been annulled, Skiles' lawyer David Molson claims it hasn't been officially dropped.

"It's our position that the parties have abandoned the contract," says Molson. "But they have not executed a release."

As for the allegation that Berry's company writes a cheque to itself for its half of the joint venture, his lawyer says the cheque merely reflects a transfer of money from either Berry or an investor to Attack.

"It's to the artists' benefit that he's putting the cheque into the company, because that funds the company to do all the things it has to do," says Berry's lawyer .

So if bands are paying up to $25,000 and Berry is kicking in the same -- is the total an outlandish amount of money to spend on recording an album?

A survey of a couple of label executives suggests that to produce a high-quality recording with an experienced producer can cost anywhere from $75,000 to $500,000. But that's distinctly at the high end, for labels with deep pockets.

A call to Metalworks Studios in Toronto reveals that tracking, mixing and mastering an 11-song recording runs about $11,000.

The studio also says it will give a 25-per-cent discount to independent projects.

At Great Big Music studios, chief engineer Brad Nelson says there are no typical costs. "I've done records that have gone gold that cost $10,000 and records that have sold 10 copies that cost $150,000. That's not an exaggeration."

What are the chances of payback on the thousands of dollars put up by starving musicians? So far, Attack hasn't sold very many records (Berry says the label averages 500 to 2,000 units per artist). But Attack does offer a bigger cut for the artist than a major label would, and Berry says he's had some success getting his artists' songs on TV shows and in films.

"You can't blame the guy for having bad Artist and Repertoire (A&R) years, if that's what you're going to blame him for, for none of (Attack's) artists being successful," says Berry's lawyer.

"It just means his A&R skills are bad. But, I mean, the guy knows how to produce a record. And the guy's producing the type of quality that attracts major-label deals."

But Attack artists are embarking on an adventure that's unusual even in this unusual business.

When a major record company signs a band to a contract, it will front the entire production cost and recoup its investment by taking a cut of the royalties once the record is released.



Finding money
Officials at Sony, BMG, Universal and EMI all confirm that's how they normally do production deals.

Says Mike Roth, senior VP of A&R at Sony Canada, "If you (the artist) have to put up the money, you might as well do it yourself and control it yourself," he says.

If artists do finance their own recording, they'll often put all the money up front themselves and license the finished recording to the record company.

Leonard Glickman, an entertainment lawyer who represents the Tragically Hip, Barenaked Ladies and the Tea Party, says he's never seen a joint-venture deal where the artist is required to put up money.

"I wouldn't say they're common," says Glickman. "That hasn't been my experience."

But while that may be the way things work with the majors, at the independent level, financing tends to be more creative.

Bernie Finklestein, the head of True North, a Canadian independent label that's been around for 30 years, says joint ventures with artists are sometimes an option.

"There are all kinds of JV deals around," says Finklestein. "And there are many variances of JV deals. So there's nothing shockingly new about it."

Attic Music Group president Alexander Mair says since very few bands in Canada are signed to record deals every year, they shouldn't rule out any opportunity to get material out.

"Artists have to be prepared to do whatever it takes," says Mair. "And if a label asks an artist to put up half the actual cash to make the record, then if I were the artist, I would say I would want a bigger piece of the action right from the first record sold."

In contrast, Susan Abramovich, an entertainment lawyer with the Toronto firm Stohn Henderson, which represents top Canadian acts including the Cowboy Junkies, Crash Test Dummies and Maestro, says, "The concept of the artists contributing money to the recording of their own masters... is so uncommon that I can say I've seen it noplace else but in the Attack deal."

Kvetching bands are a story as old as the 78-rpm record. Many musicians hit the stage, but few hit the big time. The only thing that makes this story different is that many of these artists are sinking their own dough into inevitable career oblivion.





NOW NOVEMBER 4-10, 1999

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