Captain America's Lawyer

After a troubled childhood in the Bronx, Ross J. Charap emerged to fight for truth, justice and intellectual property

 

Published in 2016 New York Metro Super Lawyers — October 2016

Photo by: Luigi Ciuffetelli

In 1940, Joe Simon, a 20-something Jewish kid from Rochester, was riding on the upper deck of the Fifth Avenue bus, furious. He knew what was going on in Europe, hated Nazi Germany, wanted to deck Adolf Hitler. America wouldn’t even enter the war for another year, but Simon worked in the comic book industry; so he thought, why not create a character who could give Hitler a knuckle sandwich?

“The sun was shining brightly, and I’m sitting there on the bus, and it’s going to be Sergeant America … Lieutenant America … and then bam, Captain America! I got off the bus and grabbed the subway. I went back up to my apartment on Cathedral Parkway and 110th Street and spent all day drawing the first drawing of Captain America.”

That’s how Ross J. Charap, an intellectual property attorney at Akerman in New York, remembers Simon telling his tale in 1999. “When he was retelling the story, the years just melted away,” Charap says. “There was this beaming while he was talking about it.”

Cap first appeared socking Hitler on the jaw on the cover of his inaugural March 1941 issue, and he would go on to become one of Marvel’s most popular superheroes. His most recent movie, Captain America: Civil War, has grossed more than $1.15 billion worldwide. All because of an idea a young man had on the Fifth Avenue bus.

Of course, as Obadiah Stane, the villain in Marvel’s Iron Man movie, tells Tony Stark, “Do you really think that just because you have an idea, it belongs to you?”

That’s where Charap comes in. “I’m a fan of Captain America,” Charap says. “He needs a lawyer, too.”

 

Charap, 67, is sitting in a conference room at Akerman, a law office of leather chairs, pristine sliding glass and crisp white paint that seems a jarring backdrop for a man far more Santa Claus than Don Draper. His own office includes a mound of papers with a desk underneath it and a collection of original artwork from clients that rivals a Chelsea gallery. His degrees and certificates are tucked away in tubes and folders, but Charap, a huge Yankees fan, proudly keeps an old seat from Yankee stadium on display. “You can still see the gum!” he says, lifting the seat upright.  

In addition to Captain America, his client list includes: the owners of the songs “Sleigh Ride,“ “Somewhere Over the Rainbow,“ “Brother, Can You Spare a Dime?“ and “Fools Rush In“; the grandchildren of Duke Ellington; the musical Man of La Mancha; lyricist Joe Darion; and the grandchildren of author Aldous Huxley. He handled the North American rights to six Beatles songs, including “She Loves You,“ Count Basie’s song catalog, and thousands of songs written and performed by Sheryl Crow, John Denver, Bob Marley, the Byrds and more. All told, he’s facilitated the sale or purchase of more than $400 million in songs. He recently closed a deal for “The Twist” for the children of songwriter Hank Ballard. Charap will sometimes croon or hum some of the tunes he represents, should one need a reminder. 

“Copyright is metaphysical,” he says. “There’s wrinkles within wrinkles, and there are true paths to go down and talk about and discuss. There are so many layers of possible meanings—not only to provisions within the law, but ideas in concept.” 

It can be a fight for artists to stay on top of an industry that is drastically changing, says Verdine White, the bassist for Earth, Wind & Fire and a Charap client. “He’s a lawyer who understands the full picture,” White says. “He has a great sense of history.” 

Charap talks in soliloquies, often with the animated hands of an orchestra conductor, and it’s common for him to forget to eat lunch because he gets lost in a thought, client meeting or folder tied to one of his cases. He describes client cases as “plights” and uses the word “delicious” to describe particularly vexing client issues. It’s not unusual for him to pound a table now and again. His views on music executives don’t need an interpreter. 

“The music business is filled with giant gasbags of greed,” Charap says. “They’re constantly, constantly, constantly trying to use their size and power to squeeze every dollar they can out of your client’s music and your client’s records.” 

And Charap knows what it’s like to be squeezed. 

His own origin story could come straight from the pages of Marvel. Born in the Bronx in 1949, Charap spent his teenage years working at his blind father’s newsstand on 72nd and Columbus.

“He never graduated from high school because of the Depression,” Charap says of his father. “He had to help his father in the candy store business they had, which is where I learned my egg cream prowess [see sidebar]. When he came out of the war, he went to work for the Veterans Administration, and when he got married he went to work at the post office, where he was a supervisor. At the age of 43, he went blind. He had diabetic retinopathy, it’s called, when the diabetes causes scar tissue to form over the optic nerve. I was 10.”

As he lost his vision, Charap’s father began to listen to books on records, or have books read to him by his son, which fueled in Charap a lifelong love of history. But the difficulties continued. When his father went blind, his mother had psychological difficulties and then developed cancer. Within two years of Charap’s starting at Columbia at age 17, both parents died. “I didn’t really have a childhood,” Charap says. At the same time, Columbia was a hotbed for student unrest and demonstrations. “I had a good time when I wasn’t mourning,” he adds. “But I was really lost in life.”  

He majored in American history. His father had told him to be an actor or lawyer, and Charap reasoned that, as a lawyer, he could do both and have financial security. He got a full scholarship to Cornell Law, where he also participated in theater. 

“I perform every day,” he says. “When I’m talking to adversaries, when I’m meeting with clients. I’m very dramatic, but I’m not fake.” 

That’s part of what makes him effective, says Jean Scrocco, an agent who represents Greg Hildebrandt, who, with his twin brother, Tim, is famous for Tolkien, Star Wars and Marvel paintings, including movie posters. After Tim passed away, Scrocco was two years and $750,000 into a heated familial dispute over the rights to the brothers’ art when she received a recommendation to see Charap. At first, she says, she was skeptical. 

“Three different law firms couldn’t get into a settlement talk in two years,” Scrocco says. “And Ross had it signed in less than six months. There’s a lion and a tiger and a bear in there. He’s a rarity in the field of law because he actually cares.” 

Charap’s entry into copyright law was happenstance. At a seminar, and just about to graduate, he met the general counsel of the American Society of Composers, Authors, and Publishers, or ASCAP, who then invited him to come to his office to arrange a few job interviews. “When I arrived in May 1973,” Charap says, “I walked in and he said, ‘Somebody in my staff quit today; you want a job?’”

He stayed for 25 years. “It was a family that I never had,” Charap says. 

He was a defender of jingles and ditties, many of which he had loved growing up. He spearheaded efforts to create licensing agreements for the use of music in the growing cable-television industry. He also spent considerable time bringing copyright infringement cases against jukebox owners.

At the time, a restaurant, tavern or café owner who purchased a jukebox did not require a license for the music to be played; and even after Congress changed copyright law in 1976, the fee was next to nothing: $8 per year per jukebox. But many owners still refused to pay up. They felt since they paid for the music in the jukebox, the music was theirs. “That was the biggest problem [for] ASCAP: You’re trying to sell something that people already have. You’re selling an intangible—the right to perform that music legally, lawfully.”

It was Charap’s job to find jukebox owners around the country to sue as a warning to the industry, but it led to some comic situations. Charap represented ASCAP on behalf of its members, including famous clients such as Bruce Springsteen, who was sometimes listed as lead plaintiff. “The judge [in Charlotte, North Carolina] is going, ‘Where is Mr. Springsteen?’ ‘Not here, Judge, I’m sorry. We represent Mr. Springsteen.’ ‘Don’t fool with me.’ This happened over and over again. It happened so many times that at some point Springsteen told us, ‘Don’t put my name on these cases anymore. Don’t sue on my song.’”

Barry Knittel was ASCAP’s head of general licensing who taught Charap that licensing knew few boundaries. They licensed music played in the anterooms of funeral parlors, on buses, at horse racetracks. “He would license a flea circus if he could,” Charap says. “He licensed everything and he was good at it.”

Charap also credits Knittel with teaching him the drama of the profession: “To loosen my tie, unbutton my shirt and show my chest hair. He was a character like no other.” Before meetings, Charap recounts, “he would say, ‘All right, it’s a quarter to one. At five to one, I’m going to storm out of the meeting.’ I said, ‘Barry, we have to do this.’ He’d go, ‘No, it doesn’t matter. We’re going to get a higher fee.’ I said, ‘All right, then you want me to come out, and we’ll stand out there and look at each other, and we’ll go back in.’ … Worked every time.”

 

In 1998, Charap left ASCAP for IP boutique firm Darby & Darby and three years later went to Moses & Singer. Along the way, the National Music Publishers Association asked Charap to create an anti-piracy program that took down unlawful websites with song lyrics or guitar tabs. A lawsuit against one such site led to a $7.4 million judgment. Charap also created license agreements for sites that were willing to pay a fee, and which now generate tens of millions of dollars in new revenue annually, he says. 

In 2010, Charap moved to Arent Fox, then to Akerman last year to avoid age-related partnership rules. “Seventy is not a realistic step-aside date for me,” he says. 

He points to Simon, Captain America’s creator, as a role model for longevity. Simon, who died in 2011 at 98, continued drawing and fighting for his art late into life. He had sued Marvel in the 1960s but settled out of court for a flat fee of $7,500 while conceding that he had been an employee-for-hire at the time, even though he hadn’t been, Charap says. 

In the late ’90s, still fighting, Simon found Charap, who took the case on a contingency basis. Initially, defense won on summary judgment, but that was overturned on appeal. In the end, Simon received a large settlement with Marvel that secured him royalties and licensing fees. 

Shortly after Simon met Charap, he gave him a sketch of Captain America, which is now framed and hangs in Charap’s office near his desk. It depicts the superhero in his red, white and blue uniform, with a confident grin and his shield in hand. Simon’s signature grazes the corner along with the tagline “A noble hero for a modern age,” but Charap gingerly lifts the print off its nail to flip over to the backside, where Simon inscribed a secret message. Charap reads it aloud: He’s noble, but he’s still a virgin.

“See? There are always surprises in this work.” 

Photo by: Luigi Ciuffetelli

Photo by: Luigi Ciuffetelli

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