(to those on the BCC: list, Ms. Fancher's email was sent in response to a phone conversation we had on Wednesday, Oct. 25. My response -- below -- contains more details.)

Stacey Fancher wrote:
>
> George,
>
> Here is the addendum to the agreement with the Larmans, this is the section
> that dealt with 'control'.
>
> Stacey --
>
> I'm disturbed the Larman's are telling people we tried take away their
> ownership of FolkScene. Below is verbatim text copied from the draft I sent
> them:
>
> Mark
> ---------
>
> KPFK recognizes that "Folk Scene" is a name trademarked by the programmers
> and that aspects of the program are the intellectual property of the
> programmers. No commercial use of the KPFK program can be undertaken without
> the express written permission of both parties. Should the programmers ever
> leave KPFK, the program name "Folk Scene" and aspects of the program that
> are the intellectual property of the programmers are retained by the
> programmers and may be used elsewhere.
>
> However, with regard to any such activities by the Programmer, the
> Programmer hereby agrees to defend, hold harmless and indemnify
> KPFK/Pacifica from any and all damages, liabilities, costs, losses and
> expenses (including legal costs and attorney's fees) arising out of or
> connected with any claim, demand or action by a third party. Further, the
> Programmer agrees to reimburse KPFK on demand, for any payments made by KPFK
> at any time with respect to any damage, liability, cost or expense to which
> the foregoing indemnity applies.
>
> Nothing in the agreement should be interpreted as asking the Programmers to
> waive the legitimate copyright interest of another person and nothing is
> meant to deny artists who appear on KPFK any and all rights to their own
> work. However, KPFK is a non-profit institution and KPFK facilities may not
> be used for personal profit or commercial enterprise without the express
> written agreement of KPFK. (KPFK and the Larman's executed such an agreement
> to distribute two CDS in 1998 and 1999 through Red House Records.) KPFK is
> open to exploring any future projects that might mutually benefit both KPFK
> and programmers and/or artists, but no recordings of KPFK programming, or
> other recordings made in or with KPFK facilities or equipment, can be used
> elsewhere without the express written agreement of KPFK.
>
> -----

Stacey,

In our phone conversation yesterday, I admitted that I could not give you a fully informed opinion on the question of whether or not the contract which the Larmans refused to sign would have given ownership of the program to the station. You said it did not, I said that I had heard otherwise, and requested that you send me a copy of the contract.

You said that you would ask Mark Schubb for permission to send a copy of the contract. His response (tellingly enough) was to send this addendum, although in our phone conversation I had requested the full contract (including anything regarding "work for hire"), and therefore still cannot give you a fully informed answer as to the question of ownership.

However, there is more than enough here to make the following observations:
- The second paragraph accomplishes everything necessary to indemnify the station. I have no reason to believe that the Larmans have any objection to anything in that paragraph.
- The third paragraph says, "KPFK is a non-profit institution and KPFK facilities may not be used for personal profit or commercial enterprise without the express written agreement of KPFK." This shows beyond doubt that KPFK approves of the use of its facilities for "for profit" and commercial purposes, as long as the station has control of the project.
- The third paragraph also says, "KPFK is open to exploring any future projects that might mutually benefit both KPFK and programmers and/or artists, but no recordings of KPFK programming, or other recordings made in or with KPFK facilities or equipment, can be used elsewhere without the express written agreement of KPFK." In other words, Mark Schubb would hold veto power over anything the Larmans might want to do with the tapes of their programs.

There is nothing in the contract that prevents the station (i.e., Mr. Schubb) from withholding the "express written agreement" until the station receives a higher percentage of the royalties, or until the Larmans agree to remove a song from a proposed CD because Mr. Schubb doesn't like it. I am not saying that Mr. Schubb would behave that way; I don't need to; his behavior in the last two weeks has already spoken very eloquently on that point.

I think this amply proves the points that I attempted to make in our phone conversation:
- This is NOT about protecting KPFK from any suits.
- This is NOT about whether KPFK's facilities will or will not be used for commercial purposes.
- This IS a naked attempt by Mark Schubb to grab control of the product created by the hard work of the Larmans.

Even if I were to give Mr. Schubb every benefit of the doubt in this matter, the fact remains that he has managed to thoroughly alienate the audiences of two of the station's most popular programs ("Folkscene" and "Democracy NOW!"), if through nothing other than bad perceptions. This says a great deal about his ability (or lack thereof) to manage a listener sponsored radio station.

The mission of KPFK is to promote community expression, not to have an egotistical General Manager who tries to stifle it. We do not need a petty dictator running a station which airs a program called "Democracy NOW!"

Given the facts at hand, I ask Mr. Schubb to restore Folkscene to the schedule, with an apology to the Larmans and the listeners. Failing that, I renew my demand that Mark Schubb, for the good of KPFK and the community it serves, resign immediately as General Manager.

Geo. McCalip
KPFK Film Club Member

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