Eli (egoldberg) wrote,

Our Keepers of the Flame re-release effort: a second perspective

Why am I posting this?

Recently, the topic of the unsuccessful Keepers of the Flame reprint that we worked on in 2002-2004 came up on the alexanderfans livejournal group.

This reprint effort was something I invested a substantial amount of effort on -- approximately 100 hours of my time over two years -- and $250 to provide an attorney with a minimum-wage gratuity for the many dozens of hours of his professional time. (He was one of Heather's fans who volunteered.)

I've consciously kept all the details of this discussion and negotiation private: music publishing is what I do for joy, not for angst. Even as I type, I can easily see this spiraling out into a flamewar.

However, after some soul-searching and reading a comment from Alex's business manager, I think I'd like to "come out" with some of the back history of Keepers of the Flame as I see it, and at least provide a second perspective for people to consider. I think it's especially important for the many who have never met the other band members and only had access to Heather's old FAQ.

Just a warning: this is going to be really long, as there's a lot I want to say.

The KOTF reprint project and how I came into it…

I'd previously worked with the majority of the musicians -- Cat Taylor and Mark Ungar recorded on my first two album projects nearly 15 years ago, with John & Mark recording on the third. I love them all as musicians, and I'm grateful to have gotten to know them as human beings, too. I've never met Larry the O, but we talked extensively during the reprint effort. I also had the privilege of Heather recording several tracks on Bob Kanefsky's "Roundworm" parody CD, which I published with producer Kristoph Klover over a decade ago.

What keeps me running a music label on a part-time basis is the fact that I enjoy making customers really happy through delivering challenging, professional-quality small-print projects. On Julia Ecklar's upcoming CD, our engineers have 6 or 7 Grammy awards between them; we have at least as many symphony chairs/principals recording on it as Phoenyx had band members.

Relatedly, my "day job" is as a user experience researcher at a very large software company for a product with over a billion customers. Professionally, I'm responsible for studying and understanding our customers' goals, values, and concerns, and finding ways to satisfy these diverse and often-conflicting customer needs across a wide variety of (vocal) stakeholders.

Overall, I feel comfortable with what it takes to deliver a first-class, professional quality product, bring in and accommodate the needs of first-rate music talent, and to work with diverging perspectives -- often heatedly so.

During this reprint effort, I spent countless hours with the band members to understand their perspectives and feelings. Because Heather seemed to prefer to communicate through an attorney (not unreasonably given the project's backstory), I also hired an attorney through which we communicated exclusively, in order to be sure she understood upfront that we were serious and dedicated to meeting her in professionalism, despite the added time and money cost to me.

All that said, there are three popular notions about Keepers of the Flame that I'd like to challenge based on my work with the other four band members.

#1: Phoenyx & KOTF were a one-sided effort -- the other four members didn't contribute nearly as much as Heather

As a listener, I can fully understand how fans could perceive Keepers of the Flame as "Heather's album", with the band members providing a mere supporting role. Heather's vocals and songwriting talents shone through that album. Let's be frank: the other band members were undeniably great musicians, but it's because of Heather that KOTF achieved the cult status that it did. The other band members have never debated that Heather was absolutely central to the band, at least since I've known them.

But I'm also a music label owner and album producer. I'm also all too aware of the vital but invisible work that goes on behind the scenes, and which gets lost and forgotten by listeners.

Here's my understanding of the most significant unpaid contributions made by the other band members, both time and money:

* John Land: He loaned $2000 to the band for CD duplication (1991 dollars - that's $3200 inflation adjusted). He has never been repaid.

* Larry the O: He dedicated over 200 hours for producing and mixing the album, unpaid. Additionally, his personal outlay in engineering support was $5,000-$10,000 alone (in 1991 dollars), excluding favors called in from friends. He never got back a single penny.

* Cat Taylor: She's a professional bookkeeper/accountant, and provided these services to the band at no compensation.

* Mark Ungar: Did the band's booking work unpaid: if you've been in a band, you know that this is the most grueling job there is; the bands I know pay professionals as soon as they can afford it.

So, when you add it up, it looks like there's a minimum of $10,000 (inflation adjusted) cash outlay alone by the other band members that was never repaid, not counting the unpaid time contributions that are part and parcel of a successful band.

Larry's own engineering time contribution is worth at least an additional $15,000 (also inflation adjusted) at the barest-bones rate. After Phoenyx, he went on to a successful career in audio engineering, including executive-level sound engineering roles at companies such as LucasArts and Electronic Arts.

The other four band members have long since written off these expenses, both literally and emotionally. Larry isn't the least bit bitter, and seems to consider it his privilege to have dedicated that money to enable an album that he's just as proud of to this day.

To be clear, nobody's debating the importance of Heather's contribution, or arguing that everyone's contribution really was precisely identical. But hopefully it should be understandable that the other band members would reasonably consider their contributions to the KOTF project to have been, on average, at least respectably comparable to Heather's.

#2: The band's proposed terms were unfair to Heather

This is a much more complex topic than is evident from the LiveJournal post linked above. I'd like to go into the main contractual terms that we proposed, and why we felt them necessary.

We indeed insisted upon equal compensation for all band members. How do you assess the $20,000 worth of unrecouped money and time contributed by Larry, against Mark's work as an unpaid booking agent, or against Heather's striking cover illustration?

Especially in the context of a band divorce like this one, it seemed clear that such negotiations would be reduced to squabbling and angry bickering, which wouldn't have led to a reprint ever happening. The last thing I wanted was for this reprint to be repurposed for reliving old grudges from 20 years ago -- my goal was solely to put an album back in print and to make everyone happy.

(As an aside, given the likely limited audience for this CD, such negotiation attempts would perhaps garner a few hundred dollars at most for the negotiator anyway. Our reverence for KOTF aside, it's an album from a non-touring band that broke up 20 years ago having sold, I believe, only 1000 CDs and a bunch of cassettes.)

We made only one exception to the equal compensation rule, as Heather required it: we offered separate songwriting payments at the maximum compulsory rate, giving her substantially greater per-unit compensation compared to any other band member -- about 60 cents extra per disc -- amounting to approximately 30-50% more per unit than the other band members would receive. The other band members weren't thrilled about that, but they just wanted the album back in print if at all possible; to my perception, they had long since forgiven and forgotten and were happy to move on.

I'd truly hoped we could avoid squabbling over who deserved what share of the royalties through offering -- upfront -- financial terms so generous that our lawyer warned that we could risk losing our for-profit tax status if we ever repeated them. Thus, the size of the pie for the band was kept big as possible -- my hope was that everyone would realize it was truly a stunning offer in objective business terms for everyone.

The album's inherently small audience aside, it was still a sweetheart offer for all parties (myself admittedly excluded). The contract consisted of my accepting 100% financial risk, doing all the production work for free, and then giving nearly all the money back to the artists (subtracting necessary overhead, e.g. professional remastering + packaging). You can't beat that.

(I will also publicly acknowledge for the first time that when Alex was facing foreclosure, I even offered an on-the-spot upfront payment of $2,000 in exchange for going ahead with a reprint.)

#3: The other band members had ulterior motives beyond putting the full CD back in print under reasonable terms

Because I'm one of only two people to have worked with all the other band members in these discussions, I feel well-equipped to speak factually for what they were willing to accept in a contract, and what they weren't.

If Larry, John, Cat and Mark ever wanted anything other than putting KOTF back in print in its entirety under terms that treated everyone fairly, they never communicated it. More so, the contract they were eagerly agreeing to would have prohibited it anyway. Speaking professionally as a behavioral researcher, there were no ulterior motives surfaced at any point that I could detect.

Even though our initial contract was generous to all the band members, we were flexible on nearly everything Heather wanted. The non-negotiable points were:

(a) a neutral publisher was required
(b) we would not individually try to calculate each band member's contributions
(c) no clauses would be allowed that would allow any band member to shut down/filibuster the project after a contract was signed.

The sole product changes from the original 1991 release that we proposed in the contractual discussions (or that were even verbally contemplated) were:

#1: an award-winning book designer to redo the packaging to contemporary standards (I work with designers, and Zapf Chancery @ 300 DPI is just dated)

#2: a top mastering engineer to remaster the CD to contemporary standards (Larry had several Grammy-award winning engineers in mind)

#3: to allow Larry the O to generate a surround sound mix as a bonus track of "Voices of the Sea" (bonus material)

#4: to consider allowing a professional music journalist (e.g. from Dirty Linen) to write a retrospective on the impact of Phoenyx on the celtic rock genre at the time (more bonus material)

That's all we ever proposed, and we were flexible on all of them.

Going forward… and my feelings

As you know, it didn't work out.

We got the four band members in alignment on terms, and then worked hard to align those with Heather's wishes. Although we were never able to successfully get a set of terms that Heather did consider acceptable, we worked in good faith to accommodate the vast majority of her requests and objections as they arose, and to invite alternatives for the ones we couldn't.

Ultimately, we received a gracious and detailed letter from her attorney that they would not go forward with the album at that date, because Heather & Phil felt the timing was not good for Heather's career. We were thoughtfully invited to re-contact them in 18-24 months as circumstances changed. This was about the time Uffington Horse was getting started; it was easy to empathize and imagine her reasonably wanting to avoid comparison or confusion with a Phoenyx nostalgia release.

When we re-contacted again in the suggested 2 year timeframe, Heather's attorney informed us that Heather would not be interested in a re-release under the proposed terms, and closed further discussion. At that point, I posted the statement linked to four years later on alexanderfans.

Overall, I feel that we acted fully professionally, thoughtfully, fairly, and made a very generous proposal that I am still sincerely stunned would be declined.

I had naively assumed it would have a shot at being a viable project, given the generosity of our terms and the flexibility of the other four band members. If anything, I'm relieved to know from Kore's comment that there really, truly was nothing we could have done differently that would have led Heather to have signed on with us and her former band members for a reprint.

While the band members were open to being flexible on a surprisingly large number of points, the requirement of a neutral publisher remained (and remains) non-negotiable. So there's indeed no prospect of a reprint moving forward at this point, or at any foreseeable point in the future.

Thanks again to everyone who ever wanted a copy of this CD, without which we wouldn't have went through this journey -- the other four band members remain stunned and honored that this obscure project remains relevant to you, even 20 years later.

I'll close by saying that I will likely not reply to any comments here - nor will I be discussing this further in public. Now that a reprint is officially off the table, there's little to be accomplished through further discussion that would have the potential to become very heated, very quickly.

If there are any doubts about the accuracy or truthfulness of what I've said, I would even be open to releasing all correspondence, proposed agreements, and so forth, that took place for the reprint -- should Alex and Kore be comfortable with it being shared in the open.


Eli Goldberg
Proprietor (Prometheus Music)
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