toronto music producer andaTTACK Records and Filmworks chief Mark Berry just can't seem to shake those music-industry blues.Berry, who filed a $10-million lawsuit against the CBC after the network aired an investigative story about him last March, appeared in a Toronto small claims court earlier this week to defend himself against allegations of breach of contract.
The Quebec band Cozenera are seeking $6,000 from the producer, claiming that Berry failed to finish a "state-of-the-art" 11-song recording as agreed to in their $40,000 joint-venture production contract.
Brian Tuppert, the band's lead singer, testified in a North York courtroom Monday that he and his bandmates took out bank loans to pay Berry $10,000 (half of the $20,000 they agreed to pay) so they could begin recording in 1998.
Tuppert said Berry never produced the money he was required to put up, and he was told by Berry at one point that "in these cases I never give receipts for production deals."
As well, Tuppert testified that Berry was rarely in the studio during recording sessions, that the band had worked out a budget that totalled only $9,000, that the band recorded on used tapes even though they were billed for new ones, and that the Scarborough studio they recorded at directly quoted Tuppert a rental rate 20 per cent less than Berry had budgeted.
"We were misled," Tuppert told the court. "We could have done it for $500 in Quebec."
Although Tuppert said they finished 90 per cent of the recording, they maintain that they never went back into the studio to finish because Berry was demanding the other $10,000. The rough-mix CD they did get was "very under par," Tuppert said.
Ziad Al-Hillal, the engineer who was employed by the studio where they recorded, testified that he was instructed by Berry to erase used tape reels and record the band on them. He also testified that even though the band was billed $8,350 for engineering and equipment, he was being paid a salary by the studio.
Al-Hillal also testified that Berry was only in the recording room for an hour a day.
(Disclosure: Al-Hillal is Scott Anderson's brother-in-law.)
Under cross-examination by Berry's lawyer, Al-Hillal was asked if he recalled that the producer had gone into the hospital for surgery. Al-Hillal said he did, although he didn't recall exactly when Berry was in the hospital.
The defence also called Clifford Hunt, who heads up a digital rights management company and formerly managed rock bands Triumph and the Killjoys. He testified that it's not uncommon for first-time artists to spend over $50,000 in the studio.
He also told the court that the Berry-produced recording for Cozenera was "pretty creative, and I would feel pretty comfortable presenting it to a record company," and that "it's obvious that time and effort went into it."
Hunt said he had previously hired Berry to dub and remix a 1994 Killjoys recording and that the band later landed a major deal with Warner.
As for the amount of time producers are in the studio, Hunt said not all producers are there all the time. As well, only "an audiophile" would be able to tell the difference between recordings on new and used tape reels.
Berry, whom NOW first reported on in 1999 and who has had a business relationship with the weekly's North By Northeast music festival, is expected to testify in his defence when the case resumes February 20.
Outside the courtroom, Berry declined to comment on the case. He also didn't want to comment on his libel and defamation action against the CBC.
The CBC's report focused on Berry's joint-venture agreements with a number of musicians.
Berry's statement of claim, filed in Ottawa, maintains that "the CBC and other defendants engaged in an intentional campaign to destroy the plaintiffs' business and professional reputations by presenting the story alleging fraudulent behaviour of the plaintiffs.
"Not only did the (CBC) fail to uncover evidence of fraud, they failed to properly research and/or investigate their allegations and further refused or ignored evidence to the contrary."
The CBC, which has filed a statement of defence, denies the alleged defamation and stands by the story. firstname.lastname@example.org