Anyone who listens to Mandy Jiroux’s “Insane” (below) will quickly realize the song is derived from Blind Melon’s 1993 mega-hit “No Rain.” But is it a copyright infringement? That may depend on whether or not a judge believes “No Rain” was properly licensed.
In August, Blind Melon’s Brad Smith, Christopher Thorn, Glen Graham and Roger Stevens filed a lawsuit with word they told Jiroux’s manager Kenneth Komisar they wouldn’t license “No Rain.” According to the complaint, the band was concerned that the value of its song would be affected by conferring it to a relatively unknown artist.
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On Friday, Jiroux — who has more than 1 million subscribers to her dance channel on YouTube — filed a response with a different interpretation of discussions between the parties. She and others are now counterclaiming they indeed got Blind Melon’s permission and that members of the group are now breaching a license agreement.
According to the new court papers, Jiroux was in the studio in April when co-defendant Clifford Goilo picked up an acoustic guitar and began strumming the famous intro to “No Rain.” The musicians came up with the idea of creating a modern-day festival pop version of “No Rain” with additional lyrics. Afterwards, Komisar — who once worked as an executive at Sony and ran record labels for Michael Jackson and Justin Timberlake — reached out to Blind Melon guitarist Thorn. The new version was played for Thorn.
The following day, Thorn allegedly texted Komisar, “I’m so excited by what I heard last night — I think the no rain track you played me is dope — I ran it by my melon manager and he was into the idea as well — I’m going to send you his contact info so when you are ready to pull the trigger you can reach out to him — I think it’s a great opportunity for everyone.”
The two sides agree that Blind Melon’s manager Keith Isola then got involved and pulled Smith into the conversation.
Isola then wrote back: “Thanks for sending this over. After speaking with Brad [Smith] he didn’t have any objections to Mandy covering the material but he personally did not want to contribute anything to the track. You will have to go through Sony ATV and register the song for use as they still administer the publishing on No Rain.”
There’s big disagreement about what Isola meant.
According to Jiroux’s side, Smith was assenting to a license.
But Blind Melon’s lawsuit contends that Smith merely believed Jiroux’s song was a cover version with no permission necessary, only registration. The lawsuit states that upon more analysis, the band realized that “Insane” was a derivative version (new title, new lyrics, etc.) where permission was certainly needed. Blind Melon allegedly refused to license it, with Isola telling Komisar at the time that his band was not “interested in supporting a co write share or splitting the publishing.”
Komisar allegedly ignored that he was being told, “No.”
The counterclaims attempt to explain that Komisar again understood Isola’s message differently:
“By ‘supporting a co write or splitting the publishing,’ Isola meant — and the e-mail was understood by Komisar and would be understood by others in the industry to mean — Blind Melon wanted all of the publishing royalties on the new derivative work and would not ‘split’ the publishing with Goilo and [co-defendant Lee Anna] McCollum who had written new lyrics and a new melody for the verse.”
The counterclaim goes on to allege that the parties continued discussions. Komisar and Isola are said to have spoken on May 20 for approximately half an hour.
“In that conversation, Isola never said that Blind Melon had rescinded their grant of permission for Jiroux to use No Rain in Insane or that permission hadn’t been granted in the first place,” states the new court papers. “Rather, the only issue Isola discussed was how much money Blind Melon would make on the license.”
Blind Melon’s lawsuit stresses that Komisar kept being denied permission to use “No Rain,” and the counterclaim (read here) goes to almost comical lengths to explain away the various messages from Blind Melon’s rep as meaning something entirely at odds with plaintiff’s interpretation.
For instance, take Isola’s email to Komisar on June 24. Isola wrote, “After further discussion with Brad and the band, they have chosen not to support the track Insane at this time.”
So game over for Jiroux, right?
Well, the countersuit explains, “Given the response to an e-mail asking for Blind Melon to participate in the Insane music video, and given use of the word ‘support’ and not anything about an agreement to license, Komisar understood this e-mail to communicate that the band did not want to appear in the video or play on the master recording. Komisar did not interpret the e-mail as Blind Melon attempting to rescind its agreement to license No Rain nor could Blind Melon have done so.”
So now, Jiroux is asserting that Blind Melon expressly and impliedly agreed to license their famous song in exchange for 100 percent of publishing. Perhaps fatal to the claim is the lack of any signed written agreement spelling out terms beyond a few (at best, ambiguous) e-mails. Time will tell. The defendants are being repped by clever attorney Allen Grodsky.
