Whose 'Thing' Was It?

THE TRIALS AND TRIBULATIONS OF THE BROTHERS ISLEY

Lawsuits can make fascinating reading.

The mother of the Isley Brothers threw out the recording tape which might have proved that the group cut their career-changing “It’s Your Thing” while under contract to Motown. This nugget of information was buried in the paperwork related to the second trial – that’s right, the second trial – between the brothers and the Detroit company, which weaved its way through the U.S. courts more than 40 years ago.

One December day in 1968, matriarch Sally Isley was cleaning the basement of her adult son O’Kelly’s home in affluent Alpine, New Jersey, and that’s when the tape disposal happened. In ordering the second trial, the judge for New York’s southern district found it “incredible…that the mother of successful recording artists would throw out any tape, let alone one a month old.” Tsk, tsk.

O’Kelly is no longer with us – he died in Alpine in 1986 – but brother Ronald very much is, and none the worse for the historic, expensive legal dispute with Motown. In fact, 81-year-old Ron and younger sibling Ernie (now 70) played a show in Philadelphia yesterday, and are booked to perform in Cleveland tomorrow. And when their 2021 U.K. tour (subsequently cancelled because of COVID-19) was being promoted, three of their Motown sides were billed as among “all the hits” that they would offer. So no grudge appears to be held, at least as far as their setlist is concerned.

As 1968 wound down, the Isley Brothers had been signed to Motown for three years. “This Old Heart Of Mine (Is Weak For You)” was their biggest U.S. hit during the period, and their records were also popular – perhaps even more so – in Britain. Still, the trio had itchy feet. That December, they sought and obtained a release from Berry Gordy’s business, and contracted with Buddah Records to market and distribute their own, resurrected T-Neck label. Its first release was the self-penned, Sly Stone-influenced “It’s Your Thing,” which swiftly became the brothers’ biggest hit to date, topping the R&B charts and stopping only one place shy of the Billboard Hot 100 summit. Its sales? 1.75 million copies.

Then, the lawyers got involved.

Motown asserted that “It’s Your Thing” was made in November 1968 while the Isleys were still under contract, and it laid claim to all the recording and publishing royalties. The dispute went to court, and a jury was obliged to decide whether the brothers had cut the hit before or after leaving Motown, as there were two sessions involved: on November 6, 1968 in New York, and January 3, 1969 in New Jersey.

A SEARCH FOR NEW IDEAS?

Since the overall outcome is noted in the history books – namely, the judgement of two separate juries that the track was put on tape after the Isleys quit Motown, and therefore, that its rewards were theirs – then the related minutiae is the more interesting material. The trio claimed in the first trial’s testimony that they had recruited the Midnight Movers (after auditioning another band) to help them cut a couple of their new “ideas,” and requested a $1,000 advance from Motown for that purpose, including a fee for the Movers; that they organised the session at Manhattan’s A&R studios on November 6, 1968, but that “It’s Your Thing” was not recorded there; that they did not (as obligated) send the session tape to Motown, leaving it at O’Kelly’s home; and that the track was actually cut on January 3, 1969 at Ed Townsend’s Town Sound Studios in Englewood, New Jersey.

***The brothers, suited and booted at Motown***

This original “right to income” dispute was concluded in April 1975 when a federal jury returned the verdict in favour of the Isleys. However, in November that year, a New York district court judge, Richard Owen, noted that the outcome was predominantly based on later testimony given by the brothers, and that they had lied and contradicted some of their earlier claims. A new trial was ordered.

Among the Isleys’ revisions or clarifications was that they were broke in the autumn of 1968, short of money for household expenses and Christmas presents. Consequently, they sought the Motown advance, claiming that new material would be created in conjunction with a band (the Midnight Movers) whose name was added to the paperwork purely to justify the advance. Moreover, the Isleys said that no new music composed by them was performed or recorded at the A&R studios that November 6, and that whatever was put on tape was thrown away by Sally Isley in Alpine. This, despite the fact that the agreement with Motown for the $1,000 (worth more than $8,000 today) was predicated on the group sending the tape immediately to the company on completion.

There were also conflicting claims between Ronald, Rudolph and O’Kelly. Judge Owen noted, “The earlier testimony that they had asked Motown for $1,000 for a session, O’Kelly admitted, was not truthful ‘in the context.’ ” He added, “Ronald and Rudolph said this was what happened and that all three agreed, but O’Kelly, the one who made the call to Motown, contradicted them both and denied it.”

A TROMBONIST’S TESTIMONY

Judge Owen pointed to Motown’s “substantial documentary and testimonial proof” that “It’s Your Thing” was first recorded in New York before the Isleys left the label. Its second area of proof, he observed, came from one of the Midnight Movers, trombonist George Chillious, who was at the November date, but not in January. “He testified that he played the music for ‘It’s Your Thing’ in the November 6 session from a written trombone part bearing the title ‘It’s Your Thing,’ and after the end of the instrumental session heard Ronald Isley record the vocal part.”

***A setlist including three Motown hits***

Another intriguing element – although it may be entirely coincidental – is that the studio where the Isleys said they had first recorded “It’s Your Thing” in January ’69 was destroyed by fire less than six months later. (Might the November 6 tape have been stored there, if not tossed out by Sally Isley in December?) Ed Townsend’s Sound Town facility was incinerated on June 1, 1969, despite the seven-hour efforts of area firemen. The Harlem businesswoman who had converted the 100-year-old building so that the studio could be built “appeared at the scene this morning,” wrote a local newspaper on the day of the fire. “She broke into tears and was taken home.”

For all Judge Owen’s doubts and reservations, the second Motown-vs-Isleys trial ended in February 1977 with the same outcome as the first, the new jury having believed the siblings’ case, buttressed by fresh testimony from recording engineers and Buddah president Art Kass. Motown’s sole consolation may have come from the fact that it was not required to pay damages or the other side’s court costs.

Fifteen years later, two “It’s Your Thing” eyewitnesses (earwitnesses?) recalled their own experience of the session. “Basically, Ron wrote the song,” Marvin Isley told me for The Billboard Book of Number One Rhythm & Blues Hits, “and he came in one day and kind of showed us the idea. He said, ‘When the band gets here tomorrow, I want you guys to show them the song.’ So we did that.”

Ernie Isley did more. “There was another bass player supposed to play,” he said, “but he didn’t play with the same feeling that we had in rehearsal, so at the last minute, they said, ‘Ernie, you play.’ I was scared to death, but it worked.” He was just 17.

Ernie also remembered asking elder brother Ronald why they didn’t make the record at Motown. “Ronald said, ‘Because it would have been done differently, with a different arrangement.’ And he said there was a certain way they wanted the song to go, and a certain direction they wanted their career to go in.”

Perhaps prudently, I did not ask either Marvin or Ernie whether they made their contributions at A&R or Sound Town – or how efficient a cleaner was their mother.

West Grand Blog is taking a summer break. See you on the other side, with luck.

Music notes: the Isley Brothers’ considerable, powerful body of work is available on digital platforms, ranging from their earliest, 1950s recordings to 2017’s Power of Peace with Carlos Santana. Their two original Motown albums, This Old Heart Of Mine and Soul On The Rocks, are there, too, plus 2009’s deep dive, The Motown Anthology. And you can find not only the studio recording (wherever it was done) of “It’s Your Thing,” but also three subsequent live versions. Listen as you wish: I can’t tell you who to sock it to.

Real estate notes: last summer in New Jersey, the towns of Teaneck and Englewood each renamed a street in honour of the Isleys – a measure of the family’s decades-long residency in Bergen County. The twin ceremonies for The Isley Brothers Way evidently pleased Ronald and Ernie, as per this news clip. Ron, in particular, has done well from property ownership: his mansion in Alpine sold for $3 million in 2019. The downside? He was forced to part company with it to settle back taxes owed to the I.R.S.