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What follows is a collection of essays about the biz, articulated through the legal and cultural legacies its inhabitants leave behind. Not "legal writing" or "music writing," per se (nor is this really a "blog"), posts draw from history and art, sociology and psychology, economics and evolution, and discuss music, law, and life writ large. Extensive footnotes at the end of each entry provide sources for assertions made and suggestions for furthering research.

Various people with varied motives, backgrounds, and abilities work together to give us the variety of sounds that shape the way we experience our world. This page is but one approach to understanding that process (and its result).


(If you're interested in contributing, email Loren to learn how.)


blogHeaderLoren Wells
Negligent Harmonies: Injured in the Audience
Riot on the Parisian Strip.
Philosopher and scientific revolutionary Robert Hooke knew the potency of music. Soothing music soothes people, he observed, while conflicting, inharmonic music accomplishes quite the opposite. In Denmark, it was said, court musicians' dissonant melodies once launched their king into a violent, murderous rage. Only when "soft, mild and effeminate" music resumed was the King "reduced to himself again."

No wonder the "tri-tone" musical interval—now common in atonal compositions and horror movie accompaniment—was long banned by the Catholic church and branded the diabolus in musica. Indeed, when classical composers first snuck discordance into public performance, Debussy's "Prelude to 'The Afternoon of a Faun'" and, shortly thereafter, Stravinsky's "Rite of Spring" caused riots at their early twentieth century Parisian debuts.

Today, "our own contemporary music seems designed to produce the same agitated effect on audiences." At ill-fated Woodstock '99, it was Limp Bizkit's song "Break Stuff"—typifying their musical genre's intellectual bounds—that was fingered as catalyst for the unacceptable crowd behavior that followed.

Limp Bizkit would surely deny intending or expecting such a result. But that's ridiculous.

Igor Stravinsky denied it too. Following as he did Debussy's similarly violent debut, he nevertheless rejected having foreseen any potential upheaval, "[s]trange as it may seem." He was admittedly "unprepared for the explosion," which begs the question: should he have been better prepared?

(Legally, that is.)

Negligent harmonies, like those that enraged Denmark's king, offer an introduction, but not an answer. Answers require a little exploration and a quick story.

Dude looks like a "crazy."

They've had 'a few good years left in them' for twenty-five years.
Steven Tyler and Joe Perry, frontman and lead guitarist for Aerosmith, were once known—and proud to be known—as the "Toxic Twins." But as addictions grew, hit songs and celebrity faded, band members left, and it became apparent their careers—like their daily lives—lacked substance (uncontrolled, that is). In the late 1980s (to the surprise of many), they cleaned up, turned around, and regained their lost limelight.

But just because the band watered down and started thinking positive, doesn't mean the audience did too.

According to Linda and Vinnie Matarazzo, Aerosmith—whether sober, sloshed, asleep, whatever—still appealed to drunkards and "crazies," shady types prone to attend rock shows featuring "toxic" anything. Moreover, Aerosmith appealed to these people on purpose. "Crazies" make dedicated fans, and Aerosmith knew it.

So when a few nogoodniks assaulted the Matarazzos at Aerosmith's Madison Square Garden appearance, the couple sued. They didn't sue the offending fans, of course, but the band, venue, security provider, even Warner Bros. Records, who released Aerosmith's music. Perry, Tyler, and the whole crew—nestled comfortably behind the First Amendment—would likely have been exonerated. But the case was settled, bypassing annoyance, motions, depositions, etc. (they usually are), so we'll never know.

The point is nevertheless intriguing. Weren't the Matarazzos kind of right, after all?

On coke, Crue, and consciousness.
It surely can't be sheer coincidence that bands intending to rile their audiences end up doing just that. Trapt and Shinedown were pinpointed by one set of plaintiffs. Creed too. No coincidence; assholes in the audience, in some genres, are standard operating procedure.

At a Metallica concert in Ohio, an enthusiastic fan injured himself and others stage-diving onto unwilling patrons. Not just intoxicated, he recently drank "from a mysterious 'blue bottle' being passed around the crowd." Coked up and drunk while watching Motley Crue, another fan sued concert promoters for personal injuries after picking a fight with security personnel. (The first case settled, the second was laughed out of court.)

Other outlandish examples abound. Most of the time, they're equally unsurprising.

That's because they're not just predictable, but natural. When listening to music—particularly loud, thumping music—human minds pump natural opiates, our own internal "mysterious blue bottles." Activity in our amygdalas and frontal lobes intensify emotional responses and impulsivity. We've known this effect for millennia. Throughout history drum-heavy accompaniment was instrumental (pun intended) in waging war, used both as preparatory stimulants before raids and as chemical excitants during combat. Human reaction to music is ingrained, it's evolutionary. And it can be easily and intentionally manipulated.

To Robert Hooke, the momentarily-maniacal Danish king proved it. Today, we have an advantage: more than 300 years additional experience. By now, audience members, like coked-out Crue fans and Aerosmith's "Crazies," respond exactly as everyone expects, as science predicts, and—perhaps most importantly—as artists intend. Because visceral mass behavior testifies to the power of shared musical experiences, it is desirable to performers. Calmness means failure.

Knowing this, "tough guy" hardcore bands put "breakdowns" in every song and actively coax nonmoving crowds. So couldn't they be liable when someone inevitably gets hurt?

Like Stravinsky, shouldn't they be prepared, perhaps?

Jefferson Sodship.
Unpreparedness may or may not imply negligence, depending on circumstances and exceptions. Intentional acts of third parties, for example (like assaults and crimes), are often held "unforeseeable," giving no rise to affirmative duties or liability. So goes the classic rule, concert promoters and musical artists shouldn't be liable to audience members like you for meatheads in circle pits (or Stravinsky haters lobbing chairs).

They might, however, be legally required to anticipate commonly-occurring behaviors. One lower Michigan court, thinking along these lines, held concert promoters liable for inadequately anticipating audience melees that broke out during shows, noting that outdoor concerts featuring bands like Danzig, Ramones, Suicidal Tendencies, and Metallica, commonly devolved into large-scale "sod throwing" soirees.

The state's highest court, however, disagreed; injured attendees were owed nothing. There was no duty to anticipate crowd misbehavior, even if expected with near certainty. (There were duties to respond appropriately, of course, which the promoters met.)

Across the lake in Illinois, courts might rule differently. One single incident of "crowd surfing" at Stone Temple Pilots' 1994 concert (combined with the band's pro-moshing stance) constituted sufficient warning for promoters, giving rise to an affirmative preventative duty at subsequent gigs. The same held true for fireworks in Jefferson Starship's audience; knowledge of previous incidents required promoters to adopt preemptive measures.

Thus, courts go either way. They agree that fans act in predictable, even if idiotic, ways. But they don't agree whether artists and venues need to be ready for it when they do.

The same old song and dance.
Stravinksy and Limp Bizkit said they never saw it coming. So must audience members hoping to trade injury for income. The circumstances present a conundrum.

Allowing venues and artists to feign ignorance (like sod-field proprietors and metal bands ignoring the past) gives assholes and crazies free reign without anybody, really, being made to pay. But validating disingenuous fans' unbelievable lawsuits (like "blue bottle" drinkers' personal injury claims) lends credence to opportunists, which is undesirable. No one—neither Stone Temple Pilots' and Aerosmith's fans nor Parisian promoters and Madison Square Garden—can honestly expect anyone to believe they didn't see it coming. We all saw it coming.

And we've seen it coming for hundreds (if not thousands) of years.

Thus, whether judges hold promoters and musicians accountable for being "unprepared for the explosion" when fans act in ridiculous (yet predictable) riotous ways, boils down, essentially, to one central inquiry: Whose interests do they want to promote, opportunists or assholes?

It seems either is a loss.

So when "tri-tones," disharmony, and pounding, driving rhythms overcome the musical masses, when mayhem erupts around you, and you're given the chance to grab a chair and participate, stand aside, or walk away, ask yourself whether you want to join the fun (be an asshole) or hope to get hurt and sue (be an opportunist). One brings pleasure, the other, potentially, profit.

Different courts say different things. Settlements are never guaranteed.

You might as well just play it safe.

Do both.
NOTES AND SOURCES ( click to reveal )
Riot on the Parisian Strip.
Robert Hooke and the King of Denmark were found in STUART ISACOFF, TEMPERAMENT: HOW MUSIC BECAME A BATTLEGROUND FOR THE GREAT MINDS OF WESTERN CIVILIZATION 190 (2003), as was the quote about "our own contemporary music."

The "tri-tone" discussion can be found in many different sources, but here is taken from DANIEL J. LEVITIN, THIS IS YOUR BRAIN ON MUSIC: THE SCIENCE OF A HUMAN OBSESSION 14 (2008).

For a discussion of the riotous Parisian debuts, see ALEX ROSS, THE REST IS NOISE: LISTENING TO THE TWENTIETH CENTURY 82 (2008). Apparently, this type of thing happened once or twice per year. Anecdotes about Stravinsky's response to the "Rite of Spring" riots were taken from HAROLD C. SHONBERG, THE LIVES OF THE GREAT COMPOSERS 480 (1997), where Stravinsky was quoted as follows, regarding the riot during the debut of "Rite of Spring": "The reactions of the musicians who came to the orchestra rehearsals were without intimation of it, and the stage spectacle did not appear likely to precipitate a riot."

Dude looks like a "crazy."
The history of Aerosmith's comeback is well-documented. Among my favorite sources is an interview with Steven Tyler and Joe Perry in the THE DECLINE OF WESTERN CIVILIZATION PART II: THE METAL YEARS (1988), filmed during their comeback in the late 1980s.

The Matarazzo's lawsuit was discussed in Matarazzo v. Aerosmith Productions, Inc., 1989 WL 140322 (S.D.N.Y.1898). After briefly providing the facts and limited procedural background, the opinion addressed whether attorneys fees should be granted to Warner Bros. Records, after settling with the plaintiffs on the condition they could still pursue sanctions. The court denied the request, saying the Matarazzo's lawsuit was not so frivolous as to warrant sanctions. In support, the opinion cited cases involving "incitement" speech in the media, such as McCollum v. CBS, 249 Cal.Rptr. 187 (Cal. Ct. App. 1988), in which the family of a young man sued Ozzy Osbourne, alleging the lyrics to his song "Suicide Solution" caused the young man's suicide.

On coke, Crue, and consciousness.
The Trapt/Shinedown lawsuit is Hambly v. Splitting Kings 2 LLC, 2009 WL 1317501 (Wash. App. Div. 2009) (spelling both bands' names incorrectly as Trapped and Shine Down). Plaintiffs were assaulted and injured by an attendee with a tendency for mosh pit violence, of which the show's proprietors were aware. (The bands themselves were not sued.) The Washington court held that no authority existed for finding the venue liable for the tortious/criminal acts of third parties, even though they may have been, admittedly, foreseeable.

Harlow v. Cee-It-Live, LLC, 2005 WL 407853 (Conn. Super. Ct. 2005) is the Creed case briefly mentioned above. This case is fascinating, and could have been in the main text. The court denied Creed's motion for summary judgment on an injured fan's negligence claims. Plaintiff argued Creed and other defendants "knew or should have known based on the genre" that the audience would act like jerks. The court found for Plaintiff, but on slightly different grounds: "genuine issues of material fact exist regarding whether the Creed defendants permitted to persist the dangerous activities of moshing, crowd surfing and stage diving, thereby creating an unreasonable risk of injury to patrons." This holding focused more on Defendants' response (as in the Mighigan cases discussed below) than anticipation (as in the Illinois cases below).

The "blue bottle" lawsuit is Adams v. Metallica, Inc., 143 Ohio App.3d 482 (Ohio Ct. App. 2001). The facts of the case are briefly summarized, and the remainder of the opinion deals with procedural issues, such as whether to seal discovery documents and whether to allow for party intervention. A later case mentions the settlement, but discusses it minimally (Adams ex rel. Adams v. Sand Creek, Inc., 860 N.E.2d 898 (Ind. Ct. App. 2007)), focusing instead on disputes between Plaintiff's original lawyers and designated local counsel, arising from the former underpaying the latter.

The coked-out Crue fan's lawsuit was White v. SMI of Pattison Ave., 1998 WL 633697 (E.D. Pa. 1998).

The evolutionary history of music and the brain can be found in LEVITAN, THIS IS YOUR BRAIN ON MUSIC; the parts about the amygdala, etc., were taken from 175 and 189. Other recent works discussing the psychological and evolutionary role of music include OLIVER SACKS, MUSICOPHILIA: TALES OF MUSIC AND THE BRAIN (2007); JOHN POWELL, HOW MUSIC WORKS: THE SCIENCE AND PSYCHOLOGY OF BEAUTIFUL SOUNDS, FROM BEETHOVEN TO THE BEATLES AND BEYOND (2010); and PHILLIP BALL, THE MUSIC INSTINCT: HOW MUSIC WORKS AND WHY WE CAN'T DO WITHOUT IT (2010). For an interesting discussion of the amygdala, and how it literally pits knee-jerk, emotive reactions against rational responses inside your brain, see STEVEN JOHNSON, MIND WIDE OPEN: YOUR BRAIN AND THE NEUROSCIENCE OF EVERYDAY LIFE 64-66 (2004).

Accounts of drum accompaniment in war come from a rather lengthy discussion in DANIEL J. LEVITIN, THE WORLD IN SIX SONGS: HOW THE MUSICAL BRAIN CREATED HUMAN NATURE 41-51 (2008).

Jefferson Sodship.
Regarding negligence liability and third party's intentional actions, Harlow, 2005 WL 407853, summed the rule succinctly: " a defendant's liability for negligence shifts entirely to the superseding conduct of a third person". Hambly, 2009 WL 1317501, agreed: "As a general rule, a person has no legal duty to protect another from the criminal acts of third parties."

The lower Michian court's decision was MacDonald v. PKT, Inc., 593 N.W.2d 176 (Ct. App. Mich. 1999), which was reversed in MacDonald v. PKT, Inc., 628 N.W.2d 33 (Mich. 2001). The latter opinion consolidated two differently-decided Michigan cases, the lower McDonald decision and Lowry v. Cellar Door Productions of Michigan, Inc., 1999 WL 33441303 (Mich. 2001). The technical legal issue was whether, under a negligence theory of liability, promoters owed a duty to patrons to anticipate and specifically prepare for the criminal or tortious acts of third parties (e.g., hire extra security to prevent sod-throwing by the audience). In the supreme court's decision, the court held they did not: "[T]he duty to respond is limited to reasonably expediting the involvement of the police, and . . . there is no duty to otherwise anticipate the criminal acts of third parties. . . . [M]erchants are not required to provide security personnel or otherwise resort to self-help in order to deter or quell such occurrences." McDonald, 628 N.W.2d at 44. See also Harlow, 2005 WL 407853, discussed in the notes Coke, Crue, and consciousness, above.

The Stone Temple Pilots concert was discussed in Thomas v. State of Illinois, 55 Ill.Ct.Cl. 337 (Ill. Ct. Cl. 2003). Its holding starkly contrasts McDonald above, saying "the law impose[s] a duty . . . to warn and protect the [audience members] from the danger of body surfing, which . . . was an activity that was both reasonably forseeable and in fact actually anticipated at this rock concert due to the reputation of the star act, the Stone Temple Pilots." However, since the phenomenon was new-ish and Plaintiff hadn't dealt with it "hands-on" before, the court said Plaintiff reasonably failed to anticipate proper response in this instance. Fireworks in Jefferson Starship's audience were the subject of Martens v. The Board of Trustees of Southern Illinois University, 35 Ill. Ct. Cl. 80 (Ill. Ct. Cl.1981). In the context of landowners' duties, the court said at such concerts "trouble was always to be anticipated because of the nature and size of the crowd," and thus "knowledge of the danger" gives rise to a "duty to anticipate it." See also Hambly, 2009 WL 1317501, discussed in the notes Coke, Crue, and consciousness, above, where Creed themselves were sued.