Gibson Meets Lacy

by Anthony Silas, attorney at law

Are you carrying contraband? That is not the question any traveling musician would ever want to hear, but one that may become more common following a recent amendment to a 100 year old law.  Interestingly, the contraband at issue is not the 51 pieces found on the side of the road in a Ragweed song; it is guitars.

On July 17, 1982 Stevie Ray Vaughan played the Montreaux Jazz Festival in Switzerland. He took with him his 1963 Stratocaster known as Number One.  Upon returning to United States, Number One came back with Stevie Ray, and the face of Texas music changed forever.  Musicians traveling abroad today face new laws and regulations that can classify their instruments as contraband and subject them to forfeiture.

Recently, Gibson Guitar Company has been in the news because the Federal Department of Fish and Wildlife raided their company, confiscated Indian Rosewood used for fingerboards, told their employees to go home, and instructed the company that they may be subject to criminal charges if they continued to make and sell guitars.  After seeing some posts on Twitter about the situation,  I became intrigued by what could have caused the Federal Government to take this kind action.

So, I did a little research.

I found that in 2008 there was an amendment to an old law known as the Lacy Act.  The amendment added plants, and specifically wood, to a law originally intended to protect against the illegal trade of animal products.  That is why the Department of Fish and Wildlife conducted the raid rather than another agency.  The amendments to the Lacy Act make it illegal to import, export, transport, sell, receive, acquire, or purchase in interstate or foreign commerce any plant, including wood, taken, possessed, transported, or sold in violation of any law or regulation of any State, or any foreign law, that protects plants or that regulates their trade.

The Federal Government did not tell Gibson what they were looking for or why they were confiscating the wood, but, a pending suit between Gibson and the Federal Government sheds some light on the matter.

This is not the first time Gibson has been raided.

In 2009, Gibson was raided and the Federal Government confiscated thousands of dollars worth of ebony fingerboards from Madagascar.  The Federal Government filed suit to forfeit the wood alleging that it was contraband because a law in Madagascar prohibits the export of unfinished ebony.  Gibson claimed ownership of the wood and denied that it was contraband.  In fact, just a few weeks before the most recent raid, Gibson filed a detailed brief in Federal Court in Tennessee detailing that prior to the ebony being exported from Madagascar at least ten Madagascar Government officials, including the Madagascar Minister of Environment Forest and Tourism, approved the wood being exported.  Madagascar certified that the fingerboards were “finished” for purposes of Madagascar law and were approved for export. The U.S. Department of Justice has taken the position that the fingerboards were not “finished” under Madagascar law.

The bottom line is that the U.S. Department of Justice has made the decision that it can interpret Madagascar Law, and now apparently Indian Law, better than the officials in those countries.

The long term effect of Gibson losing in Court is that any guitar made from the “illegal” wood is also subject to confiscation and forfeiture because it has been made with wood imported in violation of foreign law, despite the fact that the foreign country has approved the export and has not complained. There is no innocent purchaser exception to the Lacy Act.

Interestingly absent from the news is any mention of Gibson’s competitor’s being raided or their wood being seized. Guessing why would be speculation, but, their is no doubt that they are using rosewood, ebony, and other exotic tone woods which are not grown in the United States.

Another provision of the new amendments to the Lacy Act may have implications for any person that travels overseas with their guitar.  Under the new amendments, a person importing a plant must complete a declarations form (linked here). The form requires several things, including the country of harvest, value and amount of the plant being imported.  Since “plant” is defined to include wood, every wooden part on a guitar would fall under this requirement and a person would be required to accurately complete the declarations form for any guitar being imported into the United States.

Failure to complete a declarations form can subject the guitar to being confiscated.

Knowingly providing inaccurate information on the declaration form could subject a person to criminal charges and confiscation of their property. In fact, any violation of the Lacy Act subjects property to forfeiture to the United States.

As with any new law it takes time before it is interpreted in court.  Unfortunately, those interpretations are made because some company or person is threatened with the loss of their property or, in a criminal case, their liberty.  All over Texas there are well traveled and well worn guitars enabling their owners to make a living and providing us with hours of fabulous music.  It would be a tragedy if any musician lost the tools of his trade for failing to properly complete some new government form or because our Department of Justice has taken it upon itself to second-guess the decisions of foreign governments to the detriment of American workers and musicians.