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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

HUGH CASSIDY, et al., Plaintiffs,

v.

DAVID LOURIM, et al., Defendants.

: : : : : : : : : : MEMORANDUM

CIVIL NO. L-02-2105

When attorney Donald Engel filed the Complaint, the interests of his clients were in harmony. The two sets of plaintiffs (Barbara and Hugh Cassidy and Blix Street Records, Inc.) are now at odds over business issues, including whether this suit should be settled. A motion now pending tests whether Engel may continue to represent Blix Street Records over the objection of his former clients, the Cassidys.1 The Court concludes that the Rules of Professional Conduct preclude Engel from continued participation in this case.2 In a separate Order filed today, the Court will GRANT the Cassidys' motion to disqualify Engel and his firm. [Docket No. 39]. This memorandum explains the reasons for the ruling.

Because the issues have been fully briefed, the Court will dispense with a hearing. See Local Rule 105.6 (D. Md. 2001). The parties have not briefed whether Engel may continue to represent Blix Street Records in business negotiations with the Cassidys. Although it appears that Engel would be prohibited from serving in that role, the issue is not before the Court.
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I.

BACKGROUND Plaintiffs Hugh and Barbara Cassidy are the parents and heirs of the late Eva Cassidy, a gifted

vocalist who was only thirty-three when she died of cancer in 1996. Little known during her lifetime, Ms. Cassidy has achieved worldwide fame posthumously. Following the singer's death, the Cassidys contracted with Blix Street Records to manufacture, promote, and distribute Eva Cassidy records. Although the number of songs Ms. Cassidy recorded is regrettably small, there are enough for Blix Street Records to have grouped them into several very successful albums. The most famous of these is the Songbird album, which has sold over 1.5 million copies. These albums display Ms. Cassidy in her vocal maturity singing traditional songs or classics by famous songwriters. Most of the recordings on these albums were produced by Ms. Cassidy's close collaborator, Chris Biondo. This case involves one of Ms. Cassidy's youthful recordings. After her graduation from high school, Ms. Cassidy and several friends formed a group named Method Actor. The group's leader was David Lourim. Although the group was short lived, it was not a mere "garage" band. The group had a defined set of personnel, it gave public performances, and it recorded and published an album, titled Method Actor. Ms. Cassidy was the lead singer for the group, and she also drew the album's "cover art." The group recorded the album at a professional recording studio during a number of sessions that were presided over by Lourim. Lourim played guitar, and the songs appearing on the album were his original compositions. Method Actor was reviewed by the Washington Post , and members of the group attempted to distribute copies through local record stores. Neither the group nor the album met with success, and Method Actor soon disbanded. Ms. Cassidy continued her career in music, while 2

Lourim abandoned songwriting for a business career. Prompted by Ms. Cassidy's growing fame, Lourim decided to re-release Method Actor in 2002. He signed a contract with Defendants Q&W Music and IDN, which re-recorded the album, re-designed the cover to state prominently that the album featured Eva Cassidy, and scheduled the release of 45,000 copies for June of 2002. On June 24, 2002, the Cassidys and Blix Street filed the instant suit contending that (i) Lourim had no right to re-release the album, and (ii) the public would be confused into believing that they were purchasing an Eva Cassidy solo album.3 Plaintiffs' lead attorney, David Engel, who is based in Los Angeles, claims expertise in intellectual property law relating to the recording industry. Contending that Lourim's violations of copyright and trademark law were obvious and irrefutable, Engel advocated for a prompt hearing and an injunction halting the ongoing distribution of Method Actor. The Court scheduled a short but intense period of document and deposition discovery. Both sides filed extensive briefs in advance of an evidentiary hearing that was held on September 10, 2002. At the hearing, the Cassidys and Lourim testified, as did former members of Method Actor and representatives of Blix Street Records, Q&W Music, and IDN. Engel conducted the hearing for the plaintiffs: he gave oral argument, he examined witnesses, and he made factual representations as to the customs and practices of the recording industry. In an oral opinion delivered from the bench, the Court denied the motion for injunctive relief,

The Amended Complaint alleges that the new cover and prominence given to Ms. Cassidy conveys the misimpression that Method Actor is an Eva Cassidy solo album. 3

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ruling that the plaintiffs' case stood little likelihood of success on the merits. Lourim's right to re-distribute Method Actor appears clear cut. Lourim was the leader of the group, and he wrote and arranged the songs appearing in the album. The album is a joint work, and, absent an agreement to the contrary, any of the collaborators may license and promote such a work. The federal copyright statute provides that "[t]he authors of a joint work are coowners of copyright in the work." 17 U.S.C.

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