It was a whirlwind romance between the owner of a famed Manhattan club and a notable jazz vocalist. And as even a rueful ruling court would note, it was, perhaps, destined to fail.
Love first blossomed as an older club owner, John Valenti, introduced the younger talented beauty, Hilary Kole, to the world-renowned jazz pianist, Oscar Peterson. Soon the two musicians began work for a duets album, with Kole on the vocals and Peterson on the keys. Magic was in the air as the two recorded a dozen takes of four jazz vocal standards, but, as fate would have it in the world of copyright law, ownership disagreement ensued: Kelly Peterson, the executrix of Oscar Peterson’s estate, and Jayarvee Inc., owned and operated by Valenti, brought a copyright infringement suit against Kole when she arranged to have one of the unpublished songs played on blogtalkradio.com.
Kole — who has recorded or performed with Dave Brubeck, Michel Legrand, John Pizzarelli, David Frishberg, Monty Alexander, Benny Green, Freddy Cole, Alan Broadbent, Cedar Walton — counter-claimed seeking declaration of copyright ownership. Peterson and Jayarvee registered the edited sound recordings while Kole subsequently registered the original sound recordings.
It was disputed as to whether the vocalist transferred her rights in the sound recordings to Valenti, her lover and owner of the legendary Birdland jazz club, during their seven-year relationship. Valenti claimed Kole signed over her interests when she gave him a You Are There Release at their dining room table, which said that Kole received $100 in compensation for her services on the sound recordings and that she has no other compensation as to the recordings or the exploitation of them. Kole argued that the You Are There Release was meaningless because she signed and filled out the form to demonstrate to another (elderly) musician how the release form should be filled out and wrote the songs she and Peterson collaborated on, on the form a year later as scratch paper. Kole further argued that the You on the form was ambiguous as it did not identify who was receiving such a transfer of rights.
Alas, a federal judge in New York sang a different tune than the vocalist and found the club owner’s testimony more credible. Under New York law, which governed the You Are There Release, and under Section 204 of the Copyright Act, the transferee need not be explicitly identified but may be identified through circumstantial evidence. Though it was unclear who the You in the contract referred to, the court found by circumstantial evidence that Kole intended to give her rights in the recordings to Jayarvee (Valenti). Circumstantial evidence included Valenti’s testimony, a separate release form in which Kole conceded to the transfer of those recordings to Valenti that he had stapled to the You Are There Release, plus the fact that Valenti had kept the original document in his possession after several years.
While the wistful tune that might most fit this case would be an Ella and Satchmo standard — They can’t take that away from me — Kole, of course, retains her songster skills and those can carry her to a spot beyond her legal losses: