By Hank Stuever
Washington Post Staff Writer
Monday, April 10, 2006; C01
LOS ANGELES Joe Escalante is a compact, gray-at-the-temples, 43-year-old punk rocker wearing a hip Paul Frank plaid shirt. He has played bass in the same band -- the Vandals -- since he was 19. They had a couple of hits in the 1980s that, for the most part, only people in L.A. remember. They still play.
He has also made a tidy sum as a Hollywood lawyer. (JD, Loyola Marymount, '92.) He had an office and secretary at CBS for several years. He left the network to start a punk record label and do a little private practice. Escalante's label helped the world discover, among others, a band called Blink-182, which made millions, which naturally led to some distasteful near-litigation.
That's the essence of entertainment law: Everyone loses and nobody actually wins, but this does not preclude any one of us from getting a piece of the sunshine promise of stardom and happiness in pretty California.
Escalante is at least happy-seeming. He no longer practices law and swears he will never produce or distribute another album again -- or at least for now. He and his wife live in the Pointer Sisters' old spread (dark wood floors, enormous windows) in the leafy hills just off Sunset Boulevard. The Pointers long ago had to relinquish the house to the shambles of their careers, he says -- just another cautionary tale about the music industry. The questions are always the same, no matter the star: What the hell happened? Where does the money go? Who sues whom, and who owns a piece of the rights to what?
And in the "American Idol" age, in which we're all apparently entitled to fame and fortune, there is one more question: How can I keep litigation from happening to me? Americans are savvy about entertainment law in ways that make war or global warming seem like abstract threats. The real danger is that your band might break up -- even if you don't have a band.
* * *
Escalante is in a booth at the studios of Indie 103.1-FM on a recent Friday morning, taking calls on his weekly one-hour talk show, "Barely Legal Radio." People call in about their most nagging problems -- the fine-print kind. These are showbiz (emphasis biz) dilemmas, and Escalante dispenses casually glib, So-Cal-style legal advice.
The questions from callers are detailed and dramatic: Should the guy who produced my demo get "points" (a share in royalties) even if he might not wind up producing my major-label album? What's better -- a five-album deal or a one-album deal? Should my just-formed Orange County funk band incorporate yet? I wrote a song for this chick and now she's recorded it and she didn't credit me -- how can I sue her? I heard myself playing drums on a song I wrote on this band's record, and they never paid me -- now what? I'm making a documentary about an obscure, very dead musician -- do I need permission from his estate? My kid has written some songs and we registered the copyright, but now this producer dude wants to . . .
Tony from Gardena, Calif., is calling: "My question is I'm in a band now and we're starting off and we came up with a name and want to know if any other band has this name. Like, is there a Web site where we can put in the name and see? And if we use this same name . . ."
"Okay, Tony," Escalante says. "I've got a Web site for you. Ready?"
"Um, yeah," Tony says.
"Okay, I'm going to spell it for you because it's kind of hard to pronounce. Ready? G. . ."
"G," Tony repeats.
"O," Escalante says.
"O. . . . "
"O. G. L. E," Escalante continues.
"Okay, and I can just go there and find out if . . . ?" Tony says, sounding more dude-ish all the time.
"What's your name?" Escalante wants to know.
"My name's Tony," he replies.
"Oh, hey, Tony," Escalante says. "Now, what's the name of your band?"
"Phonetic," Tony says.
Well, good luck with that.
On a different week, Deanna from Hollywood calls. She has that mousy up-talk that all young women seem to use on the phone now. She tells Escalante how she's doing it all -- she writes the songs, plays instruments, but someone has told her that the major labels are interested mostly in bands, not solo acts. But she doesn't want to split the fortunes (that will surely come, any day now) several ways among band members. Can she just pay her band for services rendered and then ditch them later?
"Here's the best of both worlds, Deanna," Escalante tells her. "You sign [the band members] to some kind of a production deal that says, 'Look, this is my band. This is the Deanna band.' And tell them: 'You play drums, you play bass, you play keytar, you play rainstick and you -- guy over there -- you just play the egg. You just stand over there and shake it.' None of you guys are really in the band. You're employees, and every time we play, I pay you. We play at the Whiskey, I pay you -- here's $50 for the egg guy. You might even have to pay them for rehearsals. . . . It's going to cost a little money, but then, when you sign your deal, they're just signing Deanna. . . . Who wants these other guys, if it's just you?"
"Right," Deanna says, as if he has understood exactly. She is the star. She is so much of a star she has predetermined how to stick it to the band, once the cash register sings.
"They're all terrified someone is going to steal their work," Escalante says later, of his audience. "And I say all the time, that could be the best thing to ever happen to them."
* * *
A radio show about entertainment law sounds dreadful, even on an alternative rock station, but listen closer, and you hear America dreaming. The calls to "Barely Legal Radio" no longer come only from the L.A. area, where the general population is expected to be conversant in the basics of contracts, agents, managers. Fans of the show listen online ( http://www.indie1031.fm Fridays at 2 p.m. Eastern time) and they call from New Jersey and Texas and Washington state.
"The fact that we're in L.A., you know, I thought it might work okay," says Michael Steele, Indie 103's program director. "Never in my wildest dreams did I think it would work outside L.A., but after about three weeks there were calls from all over the country -- New Mexico, Arizona, Nebraska, Florida, and not just with 'How do I get my song played on the radio' kinds of questions, but really specific stuff."
A lifelong talk-radio junkie, Escalante started "Barely Legal Radio" last summer. He came to a meeting at the station to pitch some of the bands on his label and wound up persuading Steele to give him a talk show about law. The two-year-old station has quickly become the darling of anyone who tools about the streets about L.A. with a certain FM nostalgia for new wave, punk and whatever was cool in college -- back when, or right now. Steve Jones, a former Sex Pistol, has an enormously popular talk and music show each afternoon; punk's poet laureate, Henry Rollins, also does a regular show.
"Joe started out by saying 'My goal [for the show] is to get disbarred by the State of California,' " Steele says. "And I said, 'Well, good, then we're on the same page.' " (Escalante says he has so far not run into any official scolding from the bar association; Steele says some lawyers have called him and they were "semi-threatening, saying 'How can you put this on the air' because Joe sort of tells everyone all their dirty tricks.")
At first, Escalante thought he would be crueler on the air, more of the kind of jerk we expect in showbiz lawyers, who would let callers know just how much they don't stand a chance in Hollywood.
"I can be a mean guy," he says, but soon he heard "this desperation in every call I got. They didn't have anyone else to talk to. They didn't know any kind of connected people. . . . But you've got to give them the law, even though they're delusional."
Nevertheless the temptation is often great to give them a dose of hard truth with the free advice:
"I've said this on my show -- if you're 40 and you're just starting your rock career, it's over. Don't even. Don't kid yourself," Escalante says. "Apologize to everybody in your family, apologize to your wife or your husband, your kids, everybody who may go see you in a showcase, because it. Is. A. Fantasy. And then I get calls right away, from people who say, 'Oh, I don't believe that -- my friend's 40 and his band totally kicks ass and he just got a record deal,' and I stand by it. It's over for your friend. . . . Next call."
On his show, Escalante will pull entertainment items from the news and decipher them through a lawyer's eyes: How Kid Rock and that guy from Creed can seek injunctive relief to stop Internet distribution of a private sex video they allegedly appear in -- and what is the 13th Amendment anyhow? Let's learn!
Or why would the Killers, who hit it big last year, fire their manager, who has a contract with them through 2007? Escalante's seen this a hundred times. Lawyers, he says (not without a certain collegial contempt), clearly have persuaded the band to ditch that manager and pay him a settlement to go away, so as to acquire an even better manager who will bring them even more money, even though their first manager will be entitled to a piece of it. And if Escalante's wrong? Well, if you're a member of the Killers and you want to call in and talk, please, by all means, do.
For weeks he fixated on another egregious example of business before talent-- what can only be called The Brenna Problem, referencing the now-forgotten "American Idol" contestant who didn't make the finals.
"Earlier in the competition Brenna was on fire," he says. "But her last three weeks, she started getting average, average, average. You could see she was thinking about the money. Did you see her speech after [she was eliminated]? That was disgusting. . . . When it really counted, she said 'Ah, I'm already famous. You suckers sit around here and fight it out and see who's going to win that trophy, but I'm going to be in a recording studio.' "
Escalante says people "fill their brains with litigation in an artistic world." So many of his callers, he admits, need to quit figuring out a business plan. They need to stop worrying about LLCs (limited liability companies), earning royalty points, filling out sound recording permissions forms and suing over production credits.
"I tell people to take all that energy and put it into their creative energy, which sounds so lame," he says. "But in the music business, I'm telling you, that is real. Stop worrying about this stuff and get back into your basement and start writing some songs."
For it is business that sometimes kills poetry; contracts that can derail genius. When he was wearing a suit at CBS, Escalante says, he was still in a band, but "I couldn't write songs anymore. I'm not that broken up about it -- the guy who writes most of our songs is a guy who has no other job but being in the Vandals. He's protected by that. He doesn't have to think about the business stuff."
* * *
"Michael in L.A."
"Hi, Joe?," Michael says, and proceeds to talk about his short film. It's 10 minutes long, and it's all found black-and-white footage, which Michael believes is copyright free, except for some old animated bits of a cartoon mouse name Mickey --
"The answer is you're going down," Escalante snaps, at the merest mention of the Disney machine, the garlic that wards off every lawyer in town. "Cut it out of your film, today."
* * *
Everywhere, potential pitfalls. People call and want to know if the store signs and buildings that pass by in the backgrounds of their self-made films are copyrighted. (And the terrifying answer, in Hollywood, is a potential yes.) The innumerable ways people can sue one another in showbiz seems to delight Escalante. Yet, as casually as he tries to conduct himself, whether onstage or on the air, there is also something slightly battle-scarred about him too. He's a lawyer, and it's clear he's still sniffing at the world litigiously.
Two years ago, Escalante's record label was hired to produce a DVD of the Warped Tour. It involved 24 bands, and some four-dozen entertainment lawyers were involved to negotiate both the song publishing and performance rights. As the DVD was about to be pressed, Escalante says, an attorney for a singer in one of the bands (which he prudently won't name) came up with a whole other kind of copyright her client needed to sign off on. Another member of the band heard about that , and the entire project was again delayed. Escalante speaks of it now with sour resignation.
But his hope was restored a little by -- of all people -- Larry Flynt.
Escalante, a devout Catholic who says he is no fan of porn, knew going in that his show's name, "Barely Legal Radio," might run into some copyright issues with Flynt's Barely Legal brand of adult magazines and videos. But Flynt did not challenge the show's application for a trademark.
"I heard from some people inside that [Flynt] didn't think there was any confusion," Escalante says. "If this is true, he's the only guy I've ever heard of whose response is 'Why would I sue these people?' That sort of makes him a hero of the 'Barely Legal' show. You never hear something like that. In this town? Usually you'd at least get a letter.
"But I filed the paperwork and I got the trademark," he says. "It's a good name. It's also a disclaimer."