Millions due wronged writers of 40-year-old pop hit

November 19, 1992|By New York Times News Service

NEW YORK -- It was 1955, there was a revolution on the radio, and five kids from Washington Heights, in upper Manhattan, signed up as foot soldiers. Just after the birth of rock 'n' roll, they had their moment.

That moment was a simple, tender song called "Why Do Fools Fall in Love"; the group was Frankie Lymon and the Teen-Agers. For nearly 40 years -- as the song was recorded and rerecorded into the pop music pantheon -- the boy with the sweet soprano and that first blockbuster hit were joined in rock immortality.

Yesterday, a bit of revisionist music history was made in rrTC courtroom in lower Manhattan. A federal jury ruled that two other members of the group had actually first asked the apocalyptic questions posed by the song:

Oo-wah oo-wah

Oo-wah oo-wah

Oo-wah oo-wah

Why do fools fall in love?

Why do birds sing so gay?

And lovers await the break of day?

Why do they fall in love?

Frankie Lymon might have had some role, the jury found, but his fellow Teen-Agers -- Jimmy Merchant and Herman Santiago -- were the true and rightful authors of the song.

Now, Mr. Merchant, a cabdriver living in Queens County, and Mr. Santiago, who is unemployed and still lives in Washington Heights, stand to collect millions of dollars from those who profited from the song.

"It's been a long, awful struggle that we've been fighting since we were kids," said Mr. Merchant, who is now 52. "Thank God we're alive to see this."

The struggle is not over. The plaintiffs must go through a second phase of the trial to determine how much they are owed. "I figure there's about $4 million coming to them," said their attorney, Carl E. Person.

The defense lawyer, Ira Greenberg, said he would ask Judge Naomi Reice Buchwald to reverse the jury's verdict. He would not say if, failing that, his clients would appeal, but he cautioned that the verdict would set a bad precedent by encouraging similar suits years after the fact.

The story of "Why Do Fools Fall in Love" is a tangled history of music-business chicanery, festering resentment and legal maneuvering.

It began toward the end of 1955 with a quartet of 15-year-old students at Stitt Junior High in Washington Heights, who called themselves the Premiers. They got a tryout with George Goldner, the sharp-dressing owner of Gee Records, performing a song called "Birds Sing So Gay." Shortly after, Mr. Goldner recorded the group and released a record.

What happened in that interval, just a matter of weeks, would haunt Mr. Merchant and Mr. Santiago for 37 years. Another boy from the neighborhood, 13-year-old Frankie Lymon, joined the group and replaced young Santiago as the lead vocalist on the song.

The act's name was changed to the Teen-Agers and the song became "Why Do Fools Fall in Love?" And Mr. Lymon and Mr. Goldner, not Mr. Merchant and Mr. Santiago, were named in the copyright as authors of the song.

"Why Do Fools Fall In Love?" soared to the top of the pop charts in early 1956, and the group followed it with an 18-month concert tour. But the members of the band were paid just $1,000 each for their efforts, and Mr. Merchant and Mr. Santiago received no songwriting royalties.

"We were ignorant," Mr. Merchant said. "We did not understand contracts. We didn't know what publishing was. We didn't know about percentages. They said, 'We'll take care of you, the money will be there when you turn 21' and we believed them."

Soon, Mr. Merchant recalled, he and Mr. Santiago began to suspect that they had been taken. The singers maintain that when they complained about not being paid, they were intimidated into silence, a pattern that continued over several years when, from time to time, they would raise the issue.

Mr. Santiago testified at the trial that a record company executive told him in 1969 that his life would be in danger if he pursued his claim.

Their outrage was heightened when they realized that Mr. Lymon was receiving songwriting royalties that they believed belonged to them. "Frankie barely did anything on that song," Mr. Merchant said. "It was Herman and me. In the beginning, I was angry at Frankie, but through the years, I began to realize that he was completely manipulated by these people."

Mr. Goldner claimed credit on the premise that the song as actually recorded was substantially different from the song that the Premiers had taken to him. Several second-hand accounts have it that Mr. Goldner put Mr. Lymon's name on the song in order to market it as a schoolboy's love paean to a teacher.

Most of the royalties went to Mr. Goldner and Morris Levy, who was an important promoter and music company owner in the early days of rock 'n' roll, and the music companies they owned. In 1964, Mr. Goldner mysteriously signed over the copyright to "Why Do Fools Fall in Love" and other works to Mr. Levy, asserting that he had mistakenly taken songwriting credit that belonged to his colleague.

Mr. Person described the actions of Mr. Goldner and Mr. Levy -- who was convicted years later of conspiracy to commit extortion -- as "pretty typical of the music world in those days, but very dishonest."

Both Mr. Levy and Mr. Goldner died several years ago. It was the estate of Morris Levy and two companies that he owned, Big Seven Music Corp. and Roulette Records Inc., that the jury found liable.

Frankie Lymon left the Teen-Agers in 1957, and the group began a rapid fade into obscurity. After a years-long struggle with heroin, Lymon died in 1968 of an overdose. Another Teen-Ager, Sherman Garnes, died during heart surgery, and a third, Joe Negroni, died of a stroke.

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