Sam Cooke: Gone for 47 years, but the lawsuits roll on

Some recent civil court filings shed a lot of light on the nightmarish web of business and family entanglements related to Sam Cooke and his catalogue.

Reading the court file gave me a better appreciation of why it has taken so long to get Sam Cooke's catalogue back in print and why it has taken decades to to get the planned bio pic off the ground. (The screenwriters recently completed work on a script based on Peter Guralnick's "Dream Boogie," all the necessary music and story rights have been secured and the project now is in search of a director and a studio.)

Currently, Sam's oldest daughter, Zeriiya Zekkariyas (aka Linda Cooke) is suing Abkco in federal court, claiming ... well, it's hard to say what, precisely, she is claiming.

In her self-authored complaint -- she is not represented by a lawyer, which is unfortunate for her, if only because her complaint is almost incoherent -- she argues some sort of copyright violation.

She also alleges that Abkco is "not up to Major Standards, to Reproduce a Major Artist, such as Sam Cooke, in a Classic style." She says the company has showed "no consideration, for Sam Cooke's background, as a spiritual singer, and that his Master Recordings should be available, to those asking to use his works, to support statements, of progress, for people of his own nature, and purpose."

She adds: "My father, Sam Cooke, suffered a gruesome death, thru strange circumstances, surrounding his business affairs. The lack of concern, love and appreciation for his Contribution - re: Abkco - shows none ... The bottom line is I haven't been dealt with fairly... So, I bring my case to court, to receive Justice, from the In-Justice, from people is the Music Bus., that have no love for the Artists, and their Music. Just money."

Of course, Abkco can't simply let the complaint go unanswered. It has been forced to mount a defense to the lawsuit. In court papers, the company argues that the lawsuit represents Zeriiya's "latest attempt to commercially blackmail Abkco into paying her monies to which she is not entitled."

The related court records are very interesting in that they illustrate not only the lengths to which the company has gone to appease Sam's daughter in past dealings, they also show how much money has changed hands through a few of the deals involving Sam Cooke, RCA, Tracey Limited (later Abkco), and Sam's widow, all dating back to 1960.

The chronology goes like this:

Jan. 6, 1960 -- Sam signs with RCA. The one-year deal calls for RCA to pay Sam a flat $10,000 within 10 days of his first recording session. Sam is also to receive $1,656 per month from RCA, although this 'salary' is to be charged against, or subtracted from, his future artist royalties. It calls on Sam to produce a minimum of two LPs and four singles (eight sides). Sam's artist royalty was set at 5 percent of the list price of 90 percent of the records sold. RCA agrees to pay, within 14 days of each recording session, all expenses related to the session (musicians, other vocalists, producers, etc.), but those expenses will then be charged against Sam's royalty payments. The deal also allows RCA to re-release, after two years, any of Sam's RCA releases on its budget-priced subsidiary label, Camden. Sam's royalty on Camden releases is set at 2 percent. The contract specifies that if Sam sells at least 1 million records, RCA can exercise an option to extend the one-year contract for one additional year. If such a renewal is executed, RCA agrees that it will increase Sam's monthly salary to more than $2,000 and it will only charge Sam for the recording cost of his LPs, so that the label pays the expense of recording the singles. The contract gives Sam the power to approve (or veto) all album artwork and liner notes.

Sept. 22, 1961 - After some delay, Sam signs a new, three-year contract extension with RCA. The new deal gives him the same 5 percent artist royalty, but RCA, as promised earlier, agrees to pick up the cost of recording sessions for singles. The company also agrees to give Sam $30,000 as sort of a signing bonus, and it agrees to pay him $1,875 per month, through the fall of 1963 - although the bonus and monthly payments are all to be subtracted from Sam's future royalties. (The deal also calls for the monthly payments to increase to $3,750, effective October 1963.) The contract also includes a provision that may explain why so many of Sam's singles, which he tended to write, had picture sleeves: For each record in which Sam has a copyright interest, he is to collect a copyright royalty of two cents - unless the release has a color sleeve, in which case his copyright royalty is just one and one-half cents. The contract's expiration date is Oct. 20, 1964, but RCA reserves the right to cancel it if Sam doesn't sell at least 1 million records in the 12-month period ending Aug. 31, 1963.

Sept. 1, 1963 - With Allen Klein as his manager, Sam forms a new company, Tracey Limited. RCA agrees to assign its interest in its recording deal with Cooke to Tracey. Sam will record exclusively for Tracey, and that company will, in turn, contract with RCA for the distribution of those records on the RCA label. Tracey Limited is given the exclusive right to exploit Sam's name, image and likeness in connection with both his pre- and post-1963 recordings. With RCA now relegated to the lesser, but still very profitable, role of distributor, Sam assumes complete artistic control over his recorded output. These arrangements between Sam, Tracey Limited and RCA contractually extend Sam's affiliation with RCA through Aug. 31, 1967, with two one-year options that could carry the contract into August 1969 and beyond.

Dec. 11, 1964 -- Sam is shot to death at the Hacienda Motel in Los Angeles. His widow, Barbara, is the sole beneficiary of his estate, and she assumes all of Sam's rights and interests, including royalties, under the 1963 agreement with Tracey. Daughter Linda Cooke (later known as Zeriiya Zekkariyas) is 12 years old at the time. After Sam's death, Barbara sells her inherited interest in Tracey Limited to Allen Klein, which essentially turns Tracey into Abkco. Barbara retains her interest in Sam's catalogue as the recipient of all artist royalties. RCA and Abkco will later be involved in numerous disputes over the use of Sam's post-Sept. 1, 1963 recordings.

1985 - With Abkco's permission, RCA issues "The Man And His Music," a compilation that features some of Sam's 1963-64 recordings for Tracey Limited. (Additional Tracey material will be included on the 1995 RCA compilation "The Rhythm and The Blues.")

Oct. 13, 1988 - Acknowledging that RCA is currently releasing and making use of the Tracey recordings under a deal that's set to expire in August 1997, Abkco seeks to gain even more control over those 1963-64 masters after September 1, 1997. The company signs a deal with Barbara Cooke that essentially amends the 1963 deal Sam had with Tracey Limited. The old deal gave Sam, and later his widow, most of the say in how his recordings and likeness were to be used. This new, 1988 agreement transfers that power to Abkco, but also gives Barbara increased artist royalties. The newly amended deal is specific to material recorded by Sam, for Tracey Limited, after September 1, 1963. (These are the so-called "Tracey masters," which at that time consisted of 37 studio and Copacabana performances, plus unreleased and undocumented recordings from that period, including demos, audition tapes, radio and TV performances, etc.) Barbara is given a 10 percent royalty on the recordings (twice what Sam collected in artist royalties), minus any royalties Abkco itself might have to pay to the owner of the masters. In return, Barbara assigned to Abkco all rights she retained over the Tracey masters. She also gave Abkco the exclusive right to use Sam's name and likeness and "biographical material." This agreement would eventually lead to Abkco's release of a compilation CD of Tracey material ("Keep Movin' On," with its previously unissued title song), a series of Super Audio CDs, and the "Sam Cooke: Legend" DVD.

Feb. 21, 2008 - Linda Cooke, now known as Zeriiya Zekkariyas of the "Womack Cooke Zekkariyas Feeling Foundation," writes to Jody Klein at Abkco. In an e-mail most notable for its free-form style of writing, she tells Klein: "For a long period of time, re estate claim, re Barbara Cooke/Sam Cooke Estate Masters In Dispute, we would appreciate your cooperation is assisting in reaching an agreement out of court / only in lean of the fact, re: our last successful settlement with Allen Klein ... out of COURT AND TABLOIDS/PRESS. We are doing a series of visits to new york now and would like to schedule a meeting with you Jody and/or IRIS, soon as possible, please confirm, so we may procede to to settle this amicablely. This is a matter that needs to be done in private and away from the press, which can set in unclear image of all involved especially related family dealing in this re unestablished positioning of masters of artist sam cooke. Settled wrongly tracey limited; OF THE SAM COOKE ESTATE. Our intent is not to stop the flow of this great art of my father, but to flow within it, and definitely as a sharer..."

July 17, 2008 - Jody Klein writes to Zeriiya and points out that in 1987 Abkco paid her $25,000 in return for copies of, and all rights to, any unfinished musical compositions by her father, and that she later sent Abkco a letter indicating she had no copies of any such compositions. Klein noted that there was one composition, "Love's Calling," of which Zeriiya was claiming co-authorship, and so Allen Klein had agreed to split with her, 50/50, the publishing revenue on that one song. Zeriiya responds by saying Klein is referring to publishing matters, while she is interested in issues related to the master recordings: "Don't involve legal people in this ... We talk you come like you know you should without fighting and going into something of a deal we made with Allen, re copyrights of songs, not masters. Our choice."

Nov. 18, 2008 - Jody Klein write to Zeriiya, noting that roughly 20 years earlier Allen Klein had negotiated a deal with that resulted in her being paid "in excess of $600,000" for the publishing rights owned by Sam Cooke's heirs. Abkco paid another $25,000 for any rights Zeriiya may have claimed with regard to unpublished songs allegedly written by Sam Cooke. Klein said Abkco paid an additional $25,000 for the right to portray her and husband Cecil Womack in a motion picture based on the life of Sam Cooke. (Barbara Cooke married singer Bobby Womack shortly after Sam was killed. Her daughter then married her mother's husband's brother, Cecil Womack...)

Dec. 13, 2010 - Zeriiya send Abkco a "Notice of Recapture of Master Recording Copyrights, 1957-64, attaching a list of, ostensibly, all singles and albums that Sam recorded. (The list omits about half of Sam's recorded output.)

Feb. 15, 2011 - Abkco's lawyers write to Zeriiya, noting that Abkco Music Inc. has, over the years, paid her total of $650,000 for various rights associated with her father's catalogue, and they "strongly suggest that you obtain an opinion from an experienced copyright attorney."

May 17, 2011 - Responding to Zeriiya's lawsuit, Jody Klein notes that in addition to the millions of dollars that Abkco has earned for Sam Cooke's legal heirs, the company and the Klein family have, for 47 years, provided non-contractual financial support for Sam Cooke's family, including Sam's father, Rev. Cooke, and Sam's brother, L.C. Cooke, who had no legal claim to his estate.

 

Great post, CK.

Wow. I had only the slightest inkling of this imbroglio. Quite confusing, and sad that it has stopped the release of much of Sam's work. I wonder how much is left unreleased in the Tracey Limited vaults. The movie sounds like a nice idea,too, I hope they can find someone good to direct, and use Sam's music, not let the actor sing ala Walk The Line and Beyond The Sea. The man's voice is irreplaceable.

By the way, is there any reason to get "The Rhythm and Blues" if I already own The SACDs, The Man Who Invented Soul, and have the latest Sony set on its way? Any rare takes or anything on it?

 

What a mess. I know Allen Klein has a shady reputation, but it looks to me like this woman is wacky.

I'd love to see a Sam Cooke movie made, but the more years go on, the less chance it has of being a commercial success. (Heck, I'm still baffled that nobody made a movie on the life of Roy Orbison.)

 

Fascinating.

 

She's nutz.

 

Sorry about the ongoing lawsuits and I hope that Sam is resting in peace. For some reason I passed on the multi-channel SACD of Sam's "Night Beat", when it was first released, but just today I borrowed it from the library and damn, it knocked me out in 3-channel. A great remastering by George Marino, of which I ordered a copy for my very own this afternoon. If you don't own it, then you may wish to investigate it for yourselves.

Chris C

 

Wow. Thanks for all of that well-researched info. His daughter's writing style is...interesting.

 

It is sad that this man cannot RIP.

 

"The Rhythm And The Blues" is very nice compilation -- one that I favor for its thoughtful track selection, sequencing and overall presentation. But, as I recall, I already had everything on there, on CD, when it was first issued. So in term of the individual tracks, I am sure it would be redundant if you're getting the new Sony box set. (Most of the tracks are from "Night Beat" and "Mr. Soul," and there are no alternate takes or anything like that...)

 

I know you mean had a shady reputation as Allen died.

 

Yes, people criticize Allen Klein, and sometimes with good reason. But I have to say, it's crazy for anyone to suggest that Allen Klein and Abkco have been disrespectful to Sam Cooke and his legacy.

If anything, I'd argue they have been too protective of Sam's reputation, refusing to license his songs for use in certain movies, for example, or refusing to release alternates and out-takes that fanatics like me think should be issued for all to hear (in the right context).

Let's face it, if Abkco was interested in making a quick buck, as Linda Cooke suggests, they would be churning out hastily assembled compilations as RCA did in the late 1980s -- not releasing Super Audio CDs at regular-disc prices, or producing lavishly packaged sets like "Sam Cooke's SAR Records Story," or spending years on award-winning documentaries like "Legend." For that matter, they wouldn't be putting full-page "in memorium" ads in Billboard decades after Sam Cooke's passing. Say what you want about Allen Klein, but the man always treated Sam Cooke's catalogue -- and his family -- with great care and enormous respect.

As for the movie, it looks like it is really going to happen now. The major stumbling blocks have all been cleared and Abkco publicly said as much in a press release a few weeks ago.

 

Yeah, I don't mean any disrespect to her, but no one should ever file a federal court petition in some sort of haiku or stream-of-consciousness monologue and expect to have their complaint taken seriously by a judge.

For me, the most interesting parts of the case are the exhibits, such as the original contract between Sam and RCA, and the 1988 agreement between Abkco and Barbara Cooke.

 

Arguably a bigger problem was the lack of the Tracey/ABKCO material on the market for some time. A lot of people saw that as simply ABKCO sitting on things and not wanting to release them. Am I correct that prior to Keep Movin' On the only stuff had been on The Man And His Music, and that had been out of print for a while (I won't even mention the sound quality)?

 

Yes, that's true, although a bit of the Tracey material was readily available on CDs from the UK... I think the problem there was that one company (RCA) had the Tracey masters and another (Abkco) had certain rights in controlling their use. If you think about it, Abkco had absolutely nothing to gain, and a lot to lose, financially speaking, by blocking the release of the Tracey material. It's not as if these were assets that were appreciating in value by sitting unused in some vault. I think Abkco had genuine concerns about the songs' artistic value being compromised through some indiscriminate exploitation of their commercial value. On top of that, Abkco was, and is, a very small, family owned company. So for them to mount a reissue campaign of their own, as they did with the release of the Sam Cooke SACDs, must have been a daunting task, legally, logistically and financially.

 

I don't know about *that*. They have to be in a *far* better position financially than most small independent reissue labels out there, based on their publishing holdings alone. I suppose a little bit of legal/logistical work was necessary for the best-of, since they had to license tracks from Specialty and BMG, but I can't imagine that was any huge undertaking. And in terms of the audio and packaging, some of those aforementioned reissue labels do a great job (and often do more than what ABKCO provided).

 

Thanks, Clark. Fascinating.

 

Thanks for posting. I'm not too familiar with his music but his story is very interesting.

 

Good points. But keep in mind that Abkco Music Inc. and Abkco Music & Records are two separate corporations. And I don't think any of RCA's or Specialty's Cooke-related issues can hold a candle to Abkco's "Sam Cooke's SAR Records Story," or even the multi-channel SACD of the "Copa" album, but I admit this is all very subjective.

 

Probably legally, but my guess is for all intents and purposes, ABKCO is ABKCO.

I don't disagree that some of the ABKCO product is quite good, just that the fact that they are a small company somehow hampered them. If anything, I'd say the fact that they are small and the fact that they pretty much own and control everything would make it easier for them. Less red tape to cut through (either in terms of large label bureaucracy or small label licensing issues).

Anyway...I am quite thankful for Keep Movin' On and Portrait.

 

Here's some unreleased (maybe unrecorded) songs by Sam I found that Linda & friends are claiming copyright on:

Give me music (Sam Cooke) [1960]
Gonna have a good time (Sam Cooke) [1964]
Idle gossip (Sam Cooke) [1963]
I’ll keep thinking of you (Sam Cooke/JW Alexander) [1960]
Keep smiling (so trouble won’t come) (Sam Cooke/John Anderson) [1964]
Miss Sally (Sam Cooke) [1964]
Pow before you know it (you’re in love) (Sam Cooke) [1960]
Save your lovin’ just for me (Sam Cooke) [1962]
Shakin’ this way & that (Sam Cooke) [1964]
Something here inside (Sam Cooke) [1963]
The sound of my man (Sam Cooke) [1960]
Well (Sam Cooke) [1964]

http://www.faqs.org/copyright/i-aint-gonna-cheat-on-you-no-more-w-and-m-sam-cooke-betty-2/#id7308199

Maybe ABKCO are sitting on some of these?

 

Interesting. I don't think ANY of these were recorded by Sam. (Note that many of Sam's published and released songs in that list also have copyright claims by Linda and other family members. Not sure what to make of those claims...)

The lawsuit records indicate that the songs to which Linda claimed some rights were all unpublished at the time of Sam's death and also unrecorded.

On July 4, 2008, she wrote to Abkco and said: "The daughters as artists/writers are signing a major record PUB deal with universal music group. They are activating the sam cooke catalog of new songs never recorded, in which we did a fifty fifty pub split with allen for ABKCO." (The reference to "the daughters" is a reference to Linda's own daughters.)

In response, Abkco told Linda that she had previously only asserted co-authorship of just one song, "Love's Calling," unpublished and unrecorded by Sam, and so Abkco gave her a 50 percent share in any publishing revenue from that one song. Linda recorded it and released it on album called "Radio M.U.S.C." Abkco also paid her the $25,000 for any other unpublished Sam Cooke songs to which she felt she had some sort of claim.

 

Clark, thanks for the info on The Rhythm & Blues, i saw it in the Cheapo bin at Hastings recently, so I might pick it up even without the alternates.

I know that The Sound of My Man is an "answer song" to Chain Gang by Theola Kilgore. Sam had to be credited, obviously, because they borrowed his melody and some of the lyrics, but I don't think he had anything to do with it's production directly.

 

I don't believe he's been exhumed for the case or anything, I think he's doing just fine.

 

There are a couple of interesting, recent court cases that add to the mountain of litigation involving the music of Sam Cooke.

One case turns on the sometimes subtle differences between the “dramatic use” of copyrighted music and a mere live performance of that same music. The second case involves hundreds of thousands of dollars that Allen Klein, Sam’s manager, generously gave – as either a loan or a gift – to one of Sam’s friends and supporters, disc jockey Magnificent Montague.

The first case stems from a small-time stage production called “The Triumph and Tragedy of a Soul Stirrer - The Life of Sam.” The script for the production was written by Robert Douglas and the show was produced by Johnnie Washington.

In May and September of 2010, Washington wrote to Abkco’s New York attorney, Michael Kramer, saying he intended to launch a stage production about Cooke called “The Triumph and Tragedy of a Soul Stirrer: The Life of Sam.” The alleged purpose of Washington's correspondence with Kramer was to ensure that the show did not infringe upon any of Abkco’s copyrights and to secure song rights from the various plaintiffs.

Kramer responded with an email on November 23, 2010, saying: “In connection with your proposed mounting stage production entitled, ‘Triumph & Tragedy of a Soul Stirrer: The Life of Sam,’ Abkco has not, and will not, grant any right for any song written in whole or in part by Sam Cooke the copyright of which is owned by Abkco to be used in any manner in the production.”

In subsequent emails dated November, 24, 2010, and December 16, 2010, and December 17, 2010, Washington and Douglas assured Mr. Kramer that they would not use any of Cooke’s musical compositions in the production.

Washington and Douglas then launched five performances of the production at the Music Hall Center for the Performing Arts in Detroit, Michigan. The show played there between December 20, 2010 and January 2, 2011. During each of these performances, a performer sang a medley of Sam Cooke songs before the main scenes of the dramatic production. The medley included songs written by Sam Cooke and owned by AMI and AMRI, including, “You Send Me,” “Another Saturday Night,” “Cupid,” “Wonderful World,” “Having a Party,” and “Bring it on Home to Me.” During the performance of those songs, the theater lights were on and the stage curtains were closed. After the performer completed his medley, the lights were dimmed, the curtains were opened, and the dramatic production began.

Washington and Douglas then scheduled a second series of performances to begin on February 26, 2011, but, in anticipation of litigation, canceled the shows a few weeks before the opening.

In February 2011, Abkco Music Inc., AMI Inc., AMRI Inc., and others sued Johnnie Washington, Robert Douglas and the Music Hall Center for the Performing Arts. AMI is a music publisher that owns or controls copyrights in musical compositions, including certain musical compositions written by Sam Cooke. Its parent company, AMRI, owns, manufactures and distributes recordings of Sam Cooke and others.

In their lawsuit, the plaintiffs alleged copyright infringement with regard to the songs used during the live musical performance that prefaced the stage play. The defendants argued that the songs were merely live performances – similar to a performance by a band in a nightclub – and were not actually part of the dramatic production. They argued that because of this, they did not infringe on any copyrights. (The parties agree that in order to use a musical composition in a dramatic performance, the party seeking to use the composition must obtain so-called “grand rights” or “dramatic rights” to the song. Past case law says that grand rights are required if: (1) a song is used to tell a story, or (2) a song is performed with dialogue, scenery, or costumes.

All parties agreed that Abkco and the other plaintiffs withheld any rights to use Cooke’s songs in the stage production. To support their argument that the songs were not used to tell a story and were not performed with dialogue, scenery, or costumes, Johnnie Washington sign an affidavit that said: “Prior to the 'dramatic performance' play run from December 30, 2010 thru January 2, 2011, we arranged a 'non-dramatic medley' tribute to Same Cooke's music to be performed at 8:00 p.m. to 8:15 p.m., prior to the play production being opened at 8:15 p.m., as the patrons walked in and were being escorted by the ushers. We arranged for the stage curtains to be closed and the singer in a tuxedo performed a medley in front of the stage curtains... After he completed his presentation, I came from behind the curtains and addressed the audience.”

In court records, Washington stated: “The director, playwright and I, as the producer, did not use any songs of Abkco Music, Inc., Abkco Music & Records, Inc. ... 'in' the dramatic performance.” Washington provided a copy of the script of the production, which did not include any spoken references to Cooke’s songs.

Abkco and the other plaintiffs claimed the medley was part of the production and not a separate and distinct performance. They submitted the affidavit of an individual who attended one of the shows. He alleged that actor Hassan Watkins, who played the character of Sam Cooke in the stage play, was also the singer who performed Cooke’s songs just prior to the first act.

Watkins allegedly was “wearing a classic suit similar to suits worn by Sam while he performed during the late 1950s and early 1960s” and “made sure to closely mimic the gestures and facial expressions that Sam Cooke fans had long associated with Sam. In addition, the suit Mr. Watkins wore while singing was one of the suits he wore as Sam’s character later in the production. Simply put, Mr. Watkins was clearly in character” while singing, the patron alleged.

The court found that there was sufficient evidence to show that Watkins, while singing, may have been dressed in costume and ‘acted’ the performance in that he was mimicking the expressions and gestures of Sam Cooke, and that this was all part of the overall stage production. Because of this finding, the court refused the defendants request to dismiss the lawsuit, allowing it to proceed toward trial. The case is still pending.

In an entirely separate case out of New York State Court, ABKCO Music and Records recently prevailed in their lawsuit against the legendary disc jockey, Nathaniel Montague, aka The Magnificent Montague, for the recovery of $353,590 that Abkco and its then-president, Allen Klein, reportedly loaned Montague and his partner, Rose Casalan.

ABKCO claimed that in 1999 it began loaning money to the two defendants so they could catalogue, photograph, evaluate, insure and advertise Montague’s extensive collection of African American art and memorabilia. Montague and Casalan allegedly agreed to repay the money on demand. In court papers, ABKCO said it had also made additional cash advances to the defendants to help Montague pursue various business opportunities and to support the two defendants’ “general living expenses.” According to ABKCO, the defendants agreed to repay these funds, too, on demand.

Montague and Casalan disputed most of those claims, arguing the so-called “loans” were actually gifts based on Allen Klein’s friendship with Montague and their mutual dedication to the music of Sam Cooke. As evidence of this friendship, Montague cited his autobiography, “Burn, Baby! Burn!” In that book, Montague penned what he called a “special acknowledgment to Montague's matchless, dearest friend, Allen Klein of ABKCO Records, without whose support this book would have remained an unheard melody.” Montague also pointed to the deposition testimony of Jody Klein, Allen Klein's son, who stated that his father and Montague had shared a “friendship and a passion for Sam Cooke.”

After the lawsuit was well underway, Abkco workers were cleaning out the office of the ailing Allen Klein, and stumbled across audio-tape correspondence from Casalan to Allen Klein. Lawyers for the company immediately went to court, saying they had "just recently uncovered physical evidence" that showed the cash transfers were loans, not gifts. The tape was allegedly made by Casalan and concluded, "Sincerely and with love, Montague and Rose." On the tape, Casalan allegedly said to Allen Klein, "We really want you to know that we do understand clearly that you are advancing this financing to us … to ensure the maximum exposure for the sale of these collectors, these collectibles. It is also further understood that you will be reimbursed as purchases are made until the entire sum is paid."

The defendants argued that even if the tape was genuine and provided an accurate description of the deal, it also was evidence that no money was due Abkco since, on the tape, Casalan implied that no repayment was due until the art collection was sold – and the collection still had not been sold at that point.

Kenneth Salinsky, the vice president of ABKCO, testified at his deposition that, at some point in 1997, he attended a meeting with Allen Klein, then president of ABKCO, Montague and Casalan. Montague and Casalan asked that Allen Klein, as the president of ABKCO, loan them money to help catalog and inventory their art collection. Klein agreed to loan them the money, Salinsky said, adding that “the only terms that were discussed during that meeting was that it was going to (be) a short-term loan . . . They needed a short period of time to put it together, get it catalogued, photographed and then try and sell it. And it would take somewhere around nine months or so.” No interest rate was discussed, he testified.

Jody Klein, then current president of ABKCO, said in his deposition that the company had made a series of loans to defendants, for a total of $ 353,590.29. The first, in 1999, was for $36,383. That was followed by loans for $68,217, and $60,581.42, and $77,157 … The loans continued with additional installments through March 2005, he testified.

In August 2010, the case went to trial before Judge Emily Jane Goodman. Abkco presented three witnesses who testified that the advances were made as loans to help the defendants sell their collection of African American art and memorabilia. At trial, Abkco also introduced a July 1999 letter from the defendants' own accountant, David Cooper, who wrote to Salinsky and said that "it became apparent that [defendants] may have some deductible business expenses being paid for via the loan that has been set up through your office.”

The defendants presented no witnesses at trial, and instead asked for dismissal, arguing that Abkco had failed to prove its case. Goodman granted the defendants' motion to dismiss the complaint. Abkco appealed, and in 2011, the New York Supreme Court unanimously reversed Goodman’s decision awarded a $325,000 judgment in favor of Abkco.

The Supreme Court noted that during the course of the court proceedings, the defendants themselves had acknowledged that the “advances” they received from Abkco had to be repaid at some point. In doing so, the court said, they had admitted the advances were loans and not gifts.