On a Thursday afternoon, about 30 aspiring attorneys and practicing lawyers visiting from China, Thailand and Vietnam fill the Case Western Reserve University School of Law's Gund Hall. Today is the first session of Law of the Music Industry, a class attorney Mark Avsec teaches each spring.
Dressed in a black suit, Avsec introduces himself and fires up a PowerPoint presentation. He plays students some (properly licensed) music, then talks about the changing face of the music business, "a perfect storm of CDs, computers and mp3 compression technology that just gutted the industry."
Avsec lists the complicated legal considerations that govern the business, for better or worse. He talks about representing artists, music publishing, unlicensed mashups, fair-use doctrine and the sordid business of copyright infringements. As an example, he cites Joe Satriani's 2008 copyright infringement lawsuit against Coldplay, in which the guitarist accused the band of stealing bits of his song.
"This is the kind of case that gets my blood going," says Avsec.
That's because this professor of law is also a career keyboardist, songwriter and producer who's been to the heights in the music business, onstage and off. But a lawsuit derailed his own journey to the rock and roll promised land. None of this is in the PowerPoint.
After spending the '70s in the trenches of Cleveland rock, Avsec broke into the big time through a side door with an unlikely partner — Donnie Iris, Pittsburgh's equivalent of Michael Stanley. Working in Avsec's basement, they co-wrote "Ah! Leah!," the 1980 single that still gets airplay across the country. It peaked at No. 29 on the Billboard singles chart. And it attracted the vultures.
In 1982, an amateur songwriter sued the band's label MCA, Iris and Avsec, and their publishing company. The songwriter claimed that "Ah! Leah!" had stolen the lyric "here we go again" from a demo he'd submitted to MCA's Los Angeles office. Avsec had never been to that office or heard the demo, so he refused to settle — and the case dragged on for three years.
"We won," says Avsec. "Except we had to pay our lawyers. It was a pyrrhic victory."
The lawsuit ate up their "Ah! Leah!" money — and their time and energy. And it hurt. Avsec still bristles at the memory of being grilled by "expert witnesses" and musicologists who knew less about music than he did.
"The whole thing made me mad," says Avsec. "I felt like I was being raped by everybody in the process — the lawyers, the expert witnesses, everybody."
Marty Hoenes, who plays guitar in Iris' band the Cruisers, says Avsec didn't take a dark turn, turn to the bottle or take his frustration out on his friends. But he definitely wasn't happy about it at the time. "He was justifiably angry," recalls Hoenes. "He was irritated. [He and Donnie] lost a lot of money, and there was a lot of heartbreak. And it probably hurt their career. He said something to me at one point, like, 'I'm going to make sure it doesn't happen to me again.'"
So he went to law school.
CLEVELAND CONCERTO IN D
Avsec's credits pop up all over the world. You've heard his music, whether you listen to classic-rock radio or heard Pittsburgh's Girl Talk at a frat party last week. (An excerpt from "Ah! Leah" turned up on both of Girl Talk's albums). He's a Grammy nominee. He wrote the only Bon Jovi song that no member of Bon Jovi contributed to. He penned and produced "Mandolay," a Top 10 funky disco hit for Northeast Ohio dance band La Flavour. He rode shotgun with the James Gang on reunion shows. He joined Wild Cherry just after they wrote "Play That Funky Music," one of the 20th-century's iconic disco songs.
Sitting in his expansive Broadview Heights home, Avsec recalls growing up in a Slovenian neighborhood near East 61st and St. Clair. In his basement office-studio, he's flanked by framed 1982 Billboard charts and three-foot JBL 44335 speakers. He sits at a coffee table stacked with John Irving novels and boxed sets by the Beatles and Beach Boys, with The 7 Habits of Highly Effective People in view on his desk. Black glasses cut through the first hints of grey in his curly black hair.
Avsec, now 55, has been surrounded by music his whole life. His maternal grandfather bought him a used accordion when he was four. During the summers, he'd wake up, practice the instrument for an hour and a half, throw a baseball glove on his bike, ride down the street, play ball, deliver his Cleveland Press paper route, run to the store for his mom and eat dinner.
"It was a great place to grow up," says Avsec. "It was like that movie The Sandlot."
At age nine, he won first place in the Cleveland Accordion Teachers Association's solo competition, Junior B division, with a rousing performance of Pietro Deiro's Concerto in D. By high school, he didn't have time for baseball or the paper route that paid for his first Farfisa organ. He worked at a music store, filing sheet music. The job, he recalls, was "mind-numbing," but it had a great perk: They let him take home instruments on the weekend. That's how he learned how to play the oboe, saxophone and flute. After he saw late '60s rocker Lee Michaels in concert playing Hammond organ — "It sounded like God," he remembers — he started saving his paychecks to buy a Hammond B-3, which he still considers his primary instrument.
He was playing in bar bands while still in high school. He decided he wanted to be a studio musician after he graduated.
"I was going to achieve my dreams and die with my boots on," says Avsec. "And I was going to be a bum or be successful."
In 1975, he was playing in a lounge band called Pace. During the day, he did some studio work for Cleveland music impresario Carl Maduri, who recommended him to Wild Cherry bandleader Rob Parissi. Avsec nailed the audition, and Parissi offered him a permanent gig if the record took off. It did.
Avsec barely had his boots on before "Play That Funky Music" topped the charts and drove the record triple platinum. They played sold-out arenas, opening for Graham Central Station. Barely a year into his first professional gig, Avsec and Wild Cherry played the Grammys, where they'd been nominated for Best New Vocal Group and Best R&B Performance by a Group. They didn't win, but Billboard named the band Best Pop Group of the year.
He still considers the Grammy run a high point, but the Wild Cherry gig was downhill from there. For the band's fourth and final album, 1979's Only the Wild Survive, the collapsing group added a new member, Donnie Iris. A native of the Pittsburgh area, Iris had also been a one-hit wonder as part of the Jaggerz, who scored a hit with "The Rapper" in 1970.
Iris and Avsec roomed together on the road. Avsec was always the first back to the room — he had a fiancée at home and preferred reading to backstage debauchery. Iris, 35 at the time, had done the rock-star thing. So they had a lot of time to talk.
"Some people thought he was too old," recalls Avsec. "People didn't realize what he could do. More than anything, I liked him. I said if Wild Cherry ends, do you maybe want to do something?" Donnie said he would.
Avsec left Wild Cherry as the wheels came off and landed in Breathless, fronted by former Michael Stanley Band member Jonah Koslen. "He's a lot of fun to have in a band," says Koslen, who recruited Avsec after his unsuccessful audition for Stanley. "He's a very generous guy, very humble. He was instrumental in the sound of the band. A great support player. He fits in where you need him."
Breathless spent the summer of 1979 on the road with Kiss. It was a good gig, but Avsec wanted to write songs. So he amicably parted ways to concentrate on a new project he'd been working on.
CRUISING WITH DONNIE
Saturday afternoon. Mars Recording Studio in Mantua. Thirty years after the first Donnie Iris album, Avsec is in the studio with Iris, starting on their 10th studio record. They're laying down vocals for a Christmas album. Avsec's classically trained musical mind starts by adapting the "Hallelujah" chorus from Handel's Messiah.
"He's just an idea kind of guy," says Iris. "There would be no Cruisers if it wasn't for him. He is the man behind the scenes. He's the orchestrator. He deserves more of the spotlight, as far as I'm concerned."
Avsec translates sheet music for Iris, who whistles the melodies. Engineer Bill Korecky presides over the session, which quickly pushes ProTools to its limits. Over 90 minutes, under Avsec's guidance, they'll record 120 vocal tracks and layer them for Avsec's trademark sound, which has been a staple of classic-rock stations since 1980.
Donnie Iris and the Cruisers are one of album rock's great, neglected bands. Their first single, "Ah! Leah!" is their signature song. It's still in regular rotation on stations from Cleveland's WNCX to Boston's WZLK.
As the '70s drew to a close, Avsec and Iris assembled the Cruisers piece by piece. While Avsec played with Breathless, his four-hour rehearsals were just the beginning of his day. Afterward, he'd drive to Beaver Falls, north of Pittsburgh, to pick up Iris, and they'd motor another half-hour to nearby New Brighton to work at Jerry Reed's Jeree Studios. Avsec had a vision for lush, layered pop songs that combined '50s melodies with the rockiest elements of new wave.
"I used to call it 'beauty and the beast,'" explains Avsec. "I was really into the first Pretenders record. I wanted to get players who were real monsters on their instruments, then get those really strong melodies. And [the multi-multi-track production] was that whole Phil Spector thing."
When Avsec and Iris had an album of material, they drafted their dream team: guitarist Marty Hoenes from Erie, Breathless drummer Kevin Valentine from Cleveland and bassist Albritton McClain from Indiana. Tracks were cut in days, but Avsec spent months arranging and layering.
"Bands say, 'I don't want to do anything in the studio I can't play live," says Avsec. "My art form is in the studio. I love things like Sgt. Pepper — really well-produced stuff. Put me in the studio with a pack of cigarettes, and I don't think I was ever happier."
Avsec wrote the music, arranged the songs and sang backup. He spread the songwriting credits around: If three band members were sitting around a table and talking as a song took shape, all three got equal songwriting credits. They decided to put Iris' name on the record. Nobody minded; they had a good thing going.
"It's synergistic," says Hoenes. "Donnie has a voice — nobody can sing like that. And Mark, in a sense, had his voice in Donnie. And Donnie — 'collaborator' doesn't quiet do it justice. Mark drives it."
When "Ah! Leah!" hit the airwaves, radio stations' phones lit up. Bob Lefsetz, a music-business veteran who's one of the industry's most widely read analysts, offers, "You know the kind of track that's so good you've got to go out and buy the album right then? Not even caring what the rest of the record sounds like? That's how good 'Ah! Leah!' is."
The band signed with the Michael Belkin/Carl Maduri organization, who had managed Wild Cherry, as well as Michael Stanley. When the song got national traction, the record was picked up by Carousel, an imprint of the MCA/Universal music group. A Toronto reviewer christened Iris "the new king of cool," inspiring the title of 1981's King Cool. Its single "Love Is Like a Rock" hit No. 9 on Billboard's mainstream rock chart and No. 37 on the Hot 100, and a live clip from Blossom Music Center landed on MTV. In 1982, the '50s-style harmonies of "My Girl" made for their highest-charting single, which reached No. 25 on the Hot 100.
The Cruisers headlined big clubs and small theaters. At Ohio's Legend Valley, they opened for Journey in front of 40,000 people. Before their set, the band answered a knock at their dressing-room door and found Journey frontman Steve Perry. Perry recalled hearing "Ah! Leah" for the first time while driving across the Golden Gate Bridge and thinking, 'That's the way vocals are supposed to sound."
The Cruisers weren't Avsec's only success. The early '80s were a busy time for him. Belkin and Maduri made him their go-to guy to polish artists like La Flavour. Their hit "Mandolay," which Avsec penned, came out just as disco was dying. So for their next album, the band and Avsec came up with some pop-rock tunes. One of those songs, "She Don't Know Me," found its way to a young New Jersey band, Bon Jovi. Their behind-the-scenes team convinced them to record the arena-ready tune for their 1984 debut album.
The first two Cruisers records sold respectably, moving between 150,000 and 200,000 copies. But the band never quite broke through. Their videos were no-budget affairs in the era of budget-busting videos like "Thriller." And as '80s went on, Iris's Buddy Holly-Elvis Costello image seemed anachronistic next to the era's lavishly coiffed hair bands. And the Cruisers were never a top label priority.
"The company were not big spenders," says Belkin. "They didn't spend the kind of money they needed to spend, and that's what you needed to get airplay."
As if that weren't frustrating enough, Avsec soon found himself once again locked in litigation — this time to be released from the label contract. During the resulting hiatus, he holed up in his basement with synthesizers and a four-track. He and some friends, including Iris, recorded two albums of top-shelf synth-rock as Cellarful of Noise.
By the late '80s, the original Cruisers lineup fractured, and the band sputtered to a halt. Music was changing, and Avsec didn't feel like taking notes on hair bands or New Kids on the Block to keep current. "I was getting older," says Avsec. "I wanted to do something with my life."
He enrolled at Cleveland State University, majoring in philosophy. Avsec's wife stayed home and watched their daughters, who were then five and three, and they scraped by on royalty payments from old songs. He wrote jingles for ad agencies and stayed active at the Belkin offices.
"Mark had this innate talent to see beyond the keyboards and writing," says Belkin. "And that lawsuit pushed him into the position to bring out that talent. Did it surprise me? I knew he could do it. To this day, I kid Mark as the absent-minded professor. His mind operates in a different way [than] the vast majority of people."
Avsec kept up with the keyboards, practicing piano with his daughter Danna every day. Some nights, he'd go to sleep feeling like the pressure to perform in school and provide for his family was choking him. But unlike the music industry, hard work at school guaranteed results. Avsec graduated with honors and went directly to CSU's Cleveland-Marshall College of Law, finishing — again with honors — in 1995.
In 1997, the law led him back to music. Inspired by a case he'd studied in law school — an eminent-domain dispute that allowed Detroit to destroy a Polish Catholic neighborhood — he reconvened the Cruisers for 1997's Poletown album. The title track sounded angry.
Avsec says his second career didn't cut his musical career short; if anything, it's sustained it. Explains Avsec, "Springsteen said something like, 'To write a new song, sometimes you've got to be a new person.'"
MUSICIAN AT LAW
Twenty-two floors above Public Square, on one of three floors occupied by Benesch Attorneys At Law — which has 145 lawyers in five offices from Cleveland to Shanghai — Avsec sits behind his desk in a corner office with a view of Progressive Field. The room is decorated with framed degrees, CD art, photos of his family and picture of a young, big-haired Mark with Ringo Starr.
Like his music, Avsec's law career launched promisingly. In 1994, he presented an early version of an article now called "'Nonconventional' Musical Analysis and 'Disguised' Infringement: Clever Musical Tricks to Divide the Wealth of Tin Pan Alley." In it, he convincingly argued that Ravel's Bolero could be interpreted as a fiendishly clever rip-off of "When Irish Eyes Are Smiling." It took first place in a contest at Marshall, and he presented it at the national music publisher ASCAP's Nathan Burkan Competition in 1994.
The judging panel included David Nimmer, an attorney whose encyclopedic Nimmer on Copyright is considered the definitive secondary authority (interpretation of legal documents) on copyright law. Avsec placed second in the competition, and Nimmer encouraged Avsec to publish his work so he could cite it in future editions of his treatise.
"The paper was sophisticated," says Nimmer. "A bit puckish — but also rigorous and very well-done. [Compared to other experts in the field], he has a much greater musical background. It makes him a very engaging speaker. I find his presentations delightful. He's on a very high level."
Avsec built a clientele that included music magazine Alternative Press, Lynyrd Skynyrd, American Greetings, the Rock and Roll Hall of Fame and Museum, and, occasionally, musicians. At the firm, he's a partner and vice-chair of the intellectual-property group.
Avsec made good on his "never again" oath. Now he can defend himself and others from what he calls "vexatious, malicious, meritless" lawsuits. "I like the fun cases," he says. "But I like to know I'm on the right side morally. If it's just shaking someone down because you know it's a $100,000 case and you can get a $10,000 settlement, I don't do that. It's not good business."
Meanwhile, the Cruisers still play a handful of shows each year. Avsec doesn't see a time when he and Iris don't make records. "I don't golf," he says. "Being in the studio, it's like my vacation."
The Christmas album is just one of his new Donnie Iris-related projects. Last year, he launched King Cool, a light beer that tactfully capitalizes on Iris' regional celebrity status. At first, he imagined it would be a simple licensing transaction. Soon, it turned into real business that demanded money for research, marketing, sales and copyright paperwork. He added a couple of people with experience in business and brewing, rounding out a team that includes Iris and Hoenes, who never stopped cruising the turnpike between Pittsburgh and Cleveland.
Even though he hasn't been a full-time musician for more than two decades, Avsec will reach one of his music-career highs this month when Carlos Santana's 1999 smash comeback album, Supernatural, is reissued with a disc of bonus tracks. The song "Angel Love (Come for Me)," which Avsec co-wrote with Texas guitar hero Mason Ruffner and former Breathless bandmate Alan Greene, is being released as the first single. With more than 15 million copies sold, Supernatural is the 26th best-selling album of all time. Santana recorded the song for the original sessions, but it didn't make the final cut.
"When somebody like Santana records your song, it's worth more than money," says Avsec. "He's a legend."
In the office, Avsec is generous with his time and glad to help musicians, whether he knows them or not. In court, he's not so friendly. Deposing a witness, he's no longer the funniest guy in the room. He adopts a stern professional tone and delivers rhetorical questions like haymakers. The "Ah! Leah!" lawsuit left him with a permanent reserve of righteous venom.
"I can conjure up those feelings I had and fight," says Avsec. "That'll always stay with me. But now, [the lawsuit is] probably the best thing that happened to me. I'm happier than I ever have been."
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