Copyright Countersuit Goes Into ‘Insane’ Details

Sometimes it’s nice to remember that the phrasing of a few emails could be worth hundreds of thousands of dollars. An up-and-coming artist countersued in response to a copyright dispute over her derivative of a classic pop tune, claiming that the language in emails and phone conversations with the license-holders never rescinded permission which was previously granted. 

In September we reported that members of Blind Melon filed suit in a California court against popular YouTube dance instructor/aspiring popstar Mandy Jiroux and other co-defendants, notably her manager Kenneth Komisar, for creating the song “Insane,” which was undisputedly derived from the band’s ’90s hit “No Rain.” The original complaint claims the defendants initially presented the work as a cover and concealed that “Insane” was actually a derivative work that required a different kind of license.

It continues that as information regarding the alleged nature of the song became available, specifically to Blind Melon member Brad Smith, the band became less and less comfortable with the situation and claims the defendants were “told they did not have permission … at least three times before the release.”

The countersuit claims that correspondence between the two parties demonstrates there was an implicit agreement to license the song and that this agreement was not addressed until Jiroux and her people were already invested in creating and promoting the track.

There are three key email messages the countersuit claims establish and uphold an implicit licensing of the song. The first was from Blind Melon manager Keith Isola to Komisar after he and Blind Melon member Christopher Thorn allegedly heard the Jiroux track and expressed support. “After speaking with Brad he didn’t have any objections to Mandy covering the material but he personally did not want to contribute anything to the track. You will have to go through Sony ATV and register the song for use as they still administer the publishing on No Rain.”

Blind Melon’s original suit alleges this is a clear withholding of permission, while Jiroux’s countersuit claims the language represents approval to pursue work on the track, especially in the context of other messages in which Isola considered asking a band member to play on it. As production continued, Isola sent a message reading, “After further conversation the band is not interested in supporting a co write or splitting the publishing on this track in any way.”

The countersuit claims that from this point on there were phone conversations about how the publishing royalties would be divided, and that the permission to create the track was still not expressly rescinded. After receiving a final master version of the track, a message from Isola to Komisar said: “Thank you for sending over the treatment. … After further discussion with Brad and the band, they have respectfully chosen not to support the track Insane at this time.”

The countersuit claims this was interpreted as declining an invitation to participate in a music video, not a withdrawal or denial of licensing. No formal paperwork regarding licensing was ever signed. The countersuit seeks $150,000 in damages, as Jiroux and her people pulled “Insane” from retail outlets and radio around October due to the dispute, resulting in a loss from their investment in creating the work.

Blind Melon’s original complaint is based on the premise that a song’s value plummets once it is licensed for a derivative work, and Blind Melon has been careful in protecting “No Rain.” It is suing for damages for the loss of value to “No Rain” and attorney fees.