By BRAD WHEELER
Saturday, March 10, 2018
The 1977 song Deacon Blues is probably as close to a mission statement as the jazz-rock icons Steely Dan ever got, with lyrics about a footloose protagonist perfectly satisfied to play the saxophone as he feels and to "drink Scotch whisky all night long and die behind the wheel."
But if the song represents the beautiful-loser idealism of a beatnik era (within which charter Steely Danners Donald Fagen and Walter Becker grew of age), the band was practical, too, as fussy with its contractual arrangements as it famously was with its musical ones. In 1972, the original members of the fledgling group formed Steely Dan Inc., with all the guys signing an agreement that, among other things, stipulated a procedure for the dispersal of shares in the event of a band member's departure.
It was a fairly standard contractual agreement that served its purpose over the years. As original members left - guitarist Jeff (Skunk) Baxter, for example, went on to the Doobie Brothers and the U.S. Defence Department - Becker and Fagan stayed, eventually resulting in Steely Dan operating as a duo. Session players and sidemen were hired for studio work and tours. With only a couple of exceptions, all Steely Dan songs are credited to Fagen and Becker.
On Sept. 3, 2017, guitarist-lyricist Becker died of esophageal cancer. His death triggered a current legal battle for ownership of Steely Dan, with the estate of Becker feuding with the band's lone remaining member, Fagen.
The lawsuits from both parties involve the original buy/sell agreement. The upshot is that Fagen, as the last Steely Dan member standing, believes he should now hold all shares of Steely Dan Inc. The Becker lawyers object, contending that it has the right to retain 50-percent ownership in the band, as well as a director position going forward.
"I cried when I wrote this song, sue me if I play too long," went Deacon Blues, which hit the airwaves 40 years ago. "This brother is free - I'll be what I want to be."
Becker is now dead; Fagen wishes to play on. And neither brother is free any more.
In a recent interview with Rolling Stone, Fagen presented his side of the duelling lawsuits.
"Decades ago, when we started the band, Walter and I had a contract, and it was really a simple thing that a lot of bands have - if someone resigns or is fired or dies, they sell their rock 'n' roll stock back to the company," Fagen explained. "So we signed this thing and it ended up being that Walter and I were the remaining partners ... 50/50 partners, and the idea was that if somebody dies, the other guy would essentially run the band and take control of the band, so we're just trying to defend that contract."
Steely Dan hasn't released an album since 2003's Everything Must Go, but Fagen, with the lawsuits pending, is set to hit the road (with the Doobie Brothers) this summer. He has said that while he'd prefer to tour as Donald Fagen and the Steely Dan Band, the promoters are insisting on calling it Steely Dan - a simpler and more sellable brand.
The Becker heirs' claim to half of the band rests on a creative - Fagen's lawyers say "far-fetched" - interpretation of a clause in the original contract that calls for the automatic termination of buyout agreement "upon the occurrence of any event as a result of which all the outstanding stock of the Corporation will be owned by a single stockholder."
Legalese aside, the Becker heirs argue that Becker's death immediately triggered the dissolving of the buyout agreement, leaving it still with half ownership.
To that, Fagen's lawyers say, no, the agreement is dissolved not on the occurrence of Becker's death, but after - once Becker's shares are bought out by Fagen.
"I think it comes down to some sloppy drafting of the original agreement," says Susan Abramovitch, a prominent Toronto entertainment lawyer not involved in the case. "The case will turn very much on the interpretation of the buyout agreement, rather than the principals."
Asked her opinion on the relative merits of each position, Abramovitch (who represents or has represented such groups as Cowboy Junkies and Crash Test Dummies, as well as solo artists Jann Arden and Bruce Cockburn), thinks Fagen's case is stronger. "I can only guess the intention was that when all the outstanding stock is owned by a single stockholder, the buy/sell agreement ends."
Bob Lefsetz, a Los Angelesbased music-business veteran and leading industry blogger, agrees. "Every contract is unique, and are usually never seen by the public," Lefsetz said in an e-mail to The Globe and Mail. "But I tend to agree with the Fagen interpretation."
If the contracts are not often seen by music fans, some of the feuds involving band partnerships have very much played out in public. Perhaps the most infamous squabble involves the Guess Who. After singer and chief songwriter Burton Cummings left the band in the mid-1970s - Randy Bachman split years earlier - the group's bass player Jim Kale craftily registered the Guess Who name.
To this day, Kale (sometimes with original drummer Garry Peterson) tours under the Guess Who banner.
"What they've done to the name is a disgrace," a disgruntled Cummings has been quoted as saying.
What happens with the crossfire Steely Dan lawsuits remains to be seen. Music-industry insiders who spoke to The Globe are of the opinion that the Becker estate is contesting the buy/sell agreement only as a negotiating ploy.
"The real battle will be with respect to valuation on the book value of the Becker shares, and figuring out what the price tag is," says Chris Taylor, a Canadian music lawyer for 19 years (working with everyone from Gordon Lightfoot to Drake) before becoming global president of music for Entertainment One. "If I'm Fagen or the Becker estate, I'd get into a room and settle before the lawyers eat up the delta between them."
Jake Gold, a one-time Canadian Idol judge who has managed the Tragically Hip and many other bands, is of the same mind.
"All this is doing is forcing a new negotiation over the value of the shares. I don't see this going to court, because, quite simply, nobody wants to lose."
Of course, anyone who knows their Aja from their Gaucho is aware that while there's a name for the winners in the world, losers need a name, too. And now, more than 45 years since the band came together, Steely Dan has the blues.
Steely Dan co-founders Walter Becker, left, and Donald Fagen, seen in 1977, were as fussy with contractual arrangements as they were with musical ones, as evidenced by the formation of Steely Dan Inc.