Dallas Bar Association
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Focus | Entertainment, Art & Sports Law
March 2023 Volume 48 Number 3
Sidley Makes a Difference BY MICHELLE ALDEN
Sidley has stepped forward to support this year’s Equal Access to Justice Campaign (EAJ) with a generous contribution of $25,000. The firm has a long and distinguished history of contributing to the Campaign. Including this gift, they have donated more than $94,500 to legal aid for low-income people in Dallas since 1997. The Campaign is the annual fundraising drive that supports the activities of the Dallas Volunteer Attorney Program (DVAP). “Sidley has a long history of working with organizations like DVAP and Legal Aid of NorthWest Texas. This year alone our Dallas lawyers dedicated more than 4,900 hours to more than 160 pro bono matters serving those without access to legal services. We are engaged in matters ranging from gaining access for veterans to military and VA benefits to protecting people’s constitutional rights and civil liberties. We are proud of our lawyers and their dedication to serving their communities,” said Yvette Ostolaza, Chair of Sidley’s Management Committee and EAJ Campaign Honorary Co-Chair. Since their founding in 1866, Sidley has cultivated a tradition of, and commitment
Focus
Yvette Ostolaza
Aaron Rigby
Robert Velevis
to, pro bono service. As they have grown, so has the reach of their pro bono efforts. From Alabama to Arizona, Colombia to Madagascar, Sidley lawyers and staff devote more than 125,000 hours annually to serving those most in need. Their pro bono work has influenced the legality of Americans to live freely and proudly; protected the constitutional rights of prisoners, including the rights of inmates on death row; saved the lives of immigrants who fled their home countries seeking religious freedom; and lifted up women trying to make
a better life for themselves and their families by starting businesses in developing countries. With 130 lawyers in Dallas, many more in total on the ground in Texas, and more than 2,300 worldwide, Sidley brings the capabilities of an international, full-service law firm to their Texas clients. Through the firm’s pro bono work, they bring meaningful change to their clients and communities. Sidley provides diverse pro bono services to address the critical legal needs of the firm’s neighbors in the Dallas community. Sidley’s Dallas office
dedicated more than 4,900 hours to pro bono work in 2022—a significant increase from their 3,000 hours in 2021. Recent successful client partnerships include work with Celanese, JP Morgan, and American Airlines. In 2007, Sidley created the Veterans Advocacy Project initiative to provide assistance to Veterans. The firm represents Veterans with claims before the Department of Veterans Affairs and petitions to military continued on page 26
Entertainment, Art & Sports Law
Dallas Rock N’ Roll Lore at the Fifth Circuit BY BENJAMIN L. RIEMER
“Imitation may be the sincerest form of flattery, but it may also lead to jealousy when the imitator succeeds where the imitated does not. In this case, the object of imitation is a rock and roll song.” Daboub v. Gibbons, 42 F.3d 285, 287 (5th Cir. 1995). So began Fifth Circuit Judge Irving Goldberg, in a case emanating from the Northern District of Texas, which pitted members of the early Dallas rock band, the Nightcaps, against the more famous band, ZZ Top. The Nightcaps alleged that ZZ Top included the Nightcaps’ song Thunderbird on the album Fandango without attribution to the Nightcaps. The case’s factual history uncovers a fascinating look into the history of rock and roll in Dallas. Some of the more senior members of the Dallas Bar, and particularly Dallas natives, may remember the Nightcaps. The Nightcaps were one of the early American electric rock and roll bands, and their influence reached far beyond any recognition the band received. The Nightcaps were formed in 1958 by lead singer Billy Joe Shine, a Jesuit High School student, with his teenage buddies
Gene Haufler, David Swartz, Mario Daboub, and Jack Allday. The Nightcaps started playing gigs around Dallas, and Shine also proved to be a capable songwriter. He wrote the song Wine, Wine, Wine during a study hall at Jesuit. In 1961, the Nightcaps released their only album, which included their two biggest hits: Wine, Wine, Wine and Thunderbird. They did not formally register a copyright on any of the songs. The album was a regional hit and inspired many legendary musicians who grew up in Dallas. The same year the album was released, a boy in Oak Cliff named Stevie Ray Vaughn received a Sears guitar for his seventh birthday, and learned to play the instrument by following along to the Nightcaps’ songs. Meanwhile in Lakewood, and more relevant to this article, a 12-year-old named Dusty Hill—the future bassist for the band ZZ Top—was also listening to the Nightcaps. Fast-forward 14 years. After attending Woodrow Wilson High School in East Dallas, Dusty Hill and drummer Frank Beard moved to Houston and formed the band ZZ Top with Billy Gibbons. By 1975, ZZ Top skyrocketed to fame when they released their fourth album—Fandango. The first side of Fandango
was taken entirely from a live show recorded in New Orleans, and the very first song on the record is a blistering cover of the Nightcaps’ song Thunderbird. The Fandango album cover gave songwriting credit for Thunderbird to the members of ZZ Top, but made no mention of the Nightcaps. By that time, the Nightcaps had long since dissolved and taken day jobs. Fandango sold millions of copies worldwide, and ZZ Top performed the song live countless times since. Nothing happened for nearly two decades when, in 1992, members of the Nightcaps filed suit against ZZ Top in the Northern District of Texas. There was no dispute that ZZ Top’s version of the song Thunderbird was, “musically and lyrically identical to the version originally written and performed by the Nightcaps.” However, the court dismissed the case on summary judgment based on the statute of limitations. The Fifth Circuit opinion affirming the dismissal is full of playful musical references throughout. Perhaps most importantly, Justice Goldberg wrote that, “the waltz was over by the time the Nightcaps filed suit.” The court found that the statute of limitations began to run in 1975, when ZZ Top released the album,
and any cause of action expired by the time the Nightcaps filed suit in 1992. The court flatly rejected the argument presented by the Nightcaps that actionable conduct occurred each time ZZ Top sold an album containing the song—the “continuing tort theory.” The court’s decision differed from a Fifth Circuit panel opinion rendered only months prior. See Makedwde Pub. Co. v. Johnson, 37 F.3d 180 (5th Cir. 1994). In Makedwde, the court held that liability does arise for, “acts of infringement committed within three years prior to Plaintiffs’ lawsuit.” Subsequent courts have followed Makedwde. By all accounts, the members of the Nightcaps lived happy lives with their friends and families around Dallas. In the 1990s, the band would reunite to play monthly gigs at the Knights of Columbus, reliving their teenage glory. In 2009, the Nightcaps were honored by the Texas State Senate for their musical contributions. Billy Joe Shine passed away in 2015. He never received a penny in royalties for the song he wrote with his high school buddies. HN Ben Riemer is a Partner at Bell Nunnally, and an amateur guitar player. He can be reached at briemer@bellnunnally.com.
Inside 12 Inaugural of Cheryl Camin Murray 14 North Texas and the Digital Session Royalty Class Action 16 The DBA and Dallas During the 1960s—Changes and Challenges 27 Dallas Women Lawyers: Progress but Far from Parity
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