For many years now, Subhumans fans have been asking us to re-release our album Incorrect Thoughts. It seems that it’s been almost impossible to buy of late and when it is available, either the price is ridiculously high, or it’s a version of the album unauthorized by the band (yes, that does actually matter to some people!). Yet of all of our record releases to date, Incorrect Thoughts, first released in 1980, is probably the best known and seems to be many people’s favourite. It was our first full-length album, it was raw, passionate, reflected the spirit of the times and it was fairly well promoted and distributed in its day.
We wanted to re-release it some time ago, but there was just one little problem: ownership of the master tapes. While we had safety copies of the masters, we didn’t have the actual masters in our possession. Originally, the masters had been the property of Roy Atkinson of Friends Records. He had financed the recording and released it on his label. But several years later (after the original band had broken up in 1982), Incorrect Thoughts was re-released by a guy named Dave Ferguson in San Francisco on his label, CD Presents. As some of the individual tracks seemed to have been remixed on his re-release, clearly, Dave Ferguson had at that point, some how gained possession of the masters.
How exactly this had come about was and continues to be, a mystery. None of the original members of the band had ever been notified that the masters were being sold, given or lent to Dave Ferguson, nor was the band given the chance to buy back the masters at the time. Roy Atkinson swears that he didn’t sell the masters to Dave Ferguson. He actually gave Brian Goble a signed statement to that effect several years ago that we still have.
While we doubted that we had ever signed a document granting Atkinson ownership of the masters in perpetuity (we were young and dumb, but we don’t think we were that dumb!), we couldn’t be completely sure of the fact. We had no documents pertaining specifically to that matter. As a result, we couldn’t be sure that Ferguson hadn’t inherited some sort of document along with the masters that granted him the rights to those masters forever. Without such a document, Ferguson might well possess the masters, but he would have no legal claim to the rights to them (at least in Canadian copyright law). But if he actually did have a valid document in his possession, signed by the members of the band, granting the owner of the masters the rights to them in perpetuity and if he could prove that he was now the legitimate owner of the masters, we would not be able to legally re-release those recordings without his permission.
Consequently, we were initially convinced that there was no way Ferguson could or would make a claim to owning the rights to the masters. In fact, we had always felt that the CD Presents version of Incorrect Thoughts was little more than an unauthorized bootleg of the record. So we began to make plans to re-release the record from the safety copies that we had in our possession and we started to talk to various record labels in the alternative scene to see if anyone was interested in the project.
It was then that a number of people in the business warned us that Ferguson was both an experienced and energetic litigator. They cautioned us against re-releasing the album without checking with him first to see if he intended to claim the rights to the masters. It was pointed out, that while Ferguson may not have any valid claim to them, if he intended to claim that he did, it could be a royal pain in the ass for us and for the record label that released a record derived from those masters. While the odds might be against him actually winning a court case against us, if he had even the flimsiest case and decided to initiate legal proceedings, it could quite possibly be a long, exhausting and costly affair. As well, it might easily hold up the release of the record for years.
It was suggested that we have a lawyer draft and send a letter to Ferguson stating that we were claiming clear ownership to the masters and that we intended to re-release the record. So in March 2007, we did just that. Ferguson’s response to our letter was swift and came via his lawyer Tony Berman. Essentially, he told us that his client claimed sole ownership of the masters and that any re-release of the recording by us could result in legal action against us. He went on to say, “You are hereby ordered to cease and desist from engaging in any reproduction, distribution, use or other exploitation of the Masters”.
At that point, it was clear that Ferguson was indeed claiming ownership of the masters and it seemed likely that he would make trouble for us if we re-released the recording. As well, although our lawyer had requested some sort of proof of ownership from Ferguson should he intend to make a claim of ownership, no such proof was furnished. Nor was any explanation given as to how Ferguson had come to own the masters.
After a good deal of discussion we decided that rather than pushing the issue and potentially entering into a protracted legal battle, maybe the easiest thing to do at that point, was to see what it would take for Ferguson to wave his claim to the masters. We figured that after all, he must know that there wasn’t going to be much money generated from a re-release, so hopefully he wouldn’t ask for that much money to allow us to go ahead with the project unhindered. As well, because he had yet to offer any proof of ownership, we thought that there was a distinct possibility that he was bluffing about that and that he might be only too happy to receive some easy money without having to actually produce documentation to support his claim.
So in September 2007, we asked our lawyer to contact Ferguson’s lawyer and offer $1000 to Ferguson to waive his claim and allow us to re-release the album. We realized that this was a fairly small sum to be offering someone to forgo a legitimate claim to ownership of master tapes, but we still doubted that Ferguson’s claim was legitimate. As well, it was only intended to be an initial offer to start off negotiations.
We received a response the next day from Berman: “Thank you for your call yesterday. I have discussed your clients’ offer of $1000 with my client. The offer is rejected”. He went on to reiterate his warning that if we went ahead and re-released the recording we could face legal action. That was it. There was no counter offer. There wasn’t even any indication given as to whether or not they were willing to negotiate.
It was then that we fully realized that this was Ferguson’s game, he was a skilled player and we weren’t going to win it. It didn’t matter whether he actually had a legitimate claim to ownership or not. He had the power, we didn’t. It seemed obvious that to continue going down this path would be fruitless. The relatively inexpensive, fast and some would argue, more authentic process of re-releasing Incorrect Thoughts using the original masters was no longer an option for us.
It seemed we now had only two options left to us: abandon the project entirely and accept that these songs might never again be available to the public as a package, or re-record all the songs from scratch and release it as a brand new album. The first option would save us from spending a lot more time and money on a project that we weren’t even sure any label would be interested in. But it was a bitter pill to swallow; these songs seemed like too important a part of the band’s history to just turn our backs on and walk away from. As well, we felt that we needed to somehow regain control over these songs as recordings. So, after a few weeks of debate, we decided to go ahead with the second option and Same Thoughts, Different Day was the result.
Actually, we had a lot of fun making this new album and we think it turned out really, really well. In fact, in my opinion, it turned out much better than the original in terms of both performance and production. Re-recording these songs ended up providing us with an opportunity to improve on many of the things that we were never that happy with on the original recordings. As well, it gave us the chance to include some other songs of ours from that era that we’ve always loved and that we felt needed to be re-recorded and made available to our fans.
Anyways, I hope you check get a chance to check it out. Even if you’re a die-hard skeptic when it comes to re-recorded albums, I think there’s a real good chance you’ll dig this one. Enjoy! I should also mention that the opinions expressed here by me on this posting are solely my own and do not necessarily represent either the opinions of the Subhumans Canada or of Alternative Tentacles Records. Oh yeah, and for the record, we have yet to receive a single cent in mechanical royalties from Ferguson for all of the copies of Incorrect Thoughts he has sold. But then again, he’s only had twenty-five years to pay them to us. Maybe he needs a little more time….