nder any other circumstances, Barbara Martin and Dawn Attis might actually be friends. Both are 69. Both are from the Maritimes. And both love the music of Canadian fiddling legend Don Messer.
But that passion for Messer's music has sparked a bitter feud between the two women, who have met only once. For the past year, they've been embroiled in a legal battle over the rights to Messer's name and image. They've sued and countersued each other in two courts, and lawyers are now grappling with precedent-setting legal issues such as whether a dead celebrity's personality -- as opposed to just his or her work -- is a property right that can be passed to heirs.
At stake for Attis and Martin is the future of their rival Don Messer tribute shows. Attis, who is Messer's eldest daughter and runs his estate, backs a production by musician Frank Leahy, called Don Messer's Violin, and she has given Leahy exclusive use of Messer's name. Martin produces a replica of the TV show Don Messer's Jubilee (which ran on the CBC for a decade, starting in the late 1950s) that travels to dozens of small towns annually.
Neither woman shows any sign of backing down.
"Never," says Attis, from her home near Halifax. "My sister says, 'They don't know what they are getting into, dealing with you,' " she adds with a laugh.
"I'll keep going as long as my money holds out, because I believe in what I am doing," says Martin, from her home in Toronto. "My husband is not a well man, and I told him the other day, 'You cannot die, I cannot fit you into my schedule.' "
Messer would probably be embarrassed by all the fighting. Born in Tweedside, N.B., in 1909, he began fiddling at the age of seven, and by 16 was performing at dances across the province. In the 1930s, he moved to Prince Edward Island and teamed up with Charlie Chamberlain, a.k.a. the Singing Lumberjack, and Marg Osborne to form the Islanders.
The band developed its own style of rapid-fire, toe-tapping music, and became a fixture on local radio. The trio made a jump to national television as Don Messer's Jubilee, and throughout the 1960s drew some of the network's highest ratings. It was cancelled in part because the CBC wanted to begin attracting a younger audience. Messer died four years later.
Messer was a shy man who rarely gave interviews, or even talked during his TV show. But to Attis, "he was a wonderful father" who would often babysit his children while his wife went out to work and he waited for another gig. Attis recalls accompanying her father on a tour across Canada when she was a teenager. "We just sat in the car and talked. I had a very close relationship with my father."
Attis never took up music, but pursued a variety of careers, including nursing, dog breeding and working as a flight attendant. When her mother died in 1976, she took charge of both parents' estates.
For years after Messer's death, there were a handful of tribute shows, musicals and commemorative recordings. But few involved Attis or the estate.
Then, in 1994, Martin's cousin asked her to help organize an event in the Maritimes to commemorate the 50th anniversary of the end of the Second World War. Martin had just retired from a 32-year career at Air Canada, and was looking for something to do. "We decided that Don Messer would be a good fit because he entertained the troops in their troop camps before they were shipped overseas," she recalls.
Martin grew up in Nova Scotia and New Brunswick and knew Messer's music well. She took the idea to Graham Townsend, a renowned fiddler and one-time regular on the Jubilee. He loved it and rounded up four original cast members to participate.
Martin then called Attis. They met for coffee at a Holiday Inn in Halifax, and Martin explained the concept -- and how she planned to donate some proceeds to a local hospital where Messer had received treatment. "She was quite agreeable," Martin recalls.
Attis has a different recollection. She recalls having no problem with Martin's show, but says the estate was promised a financial statement from the event, which never materialized.
Martin's show, called Memories of a Don Messer Jubilee, debuted April 24, 1995, in Miramichi, N.B., and travelled to Moncton, Saint John and Halifax. "I had no intention of doing it any longer," Martin now says. "And then Graham got word that he was dying of cancer. So he came to me and asked me if I would please do some more shows."
Martin agreed, and started booking more performances. The response was overwhelming and she soon had a database of 5,000 fans eager for tickets to future performances. "I couldn't believe the depth and the breadth of affection that people had for Don Messer," she says. "They are senior folks and they don't have anything to see on TV any more that they like. They just wanted to see this. It brought them back to a gentler time in their lives, I guess."
Townsend died in 1998 and Martin vowed to keep the show going. She hired a young fiddler named Scott Woods to take Townsend's place, and brought along more young artists.
Around the same time, Attis decided to give one of her father's favourite violins to Frank Leahy, an Ontario fiddling champion whose family is steeped in a variety of musical styles. Attis had given little thought to Martin's show, and presumed it was gone. She signed over all rights to Messer's name and image to Leahy so that he could produce an official Don Messer tribute show. For Leahy, it was a dream come true. "It's like having Christmas every day," he says from his home in Waterloo, Ont. Messer, he adds, is "the greatest fiddle player this country has ever produced." Leahy, 43, began organizing a series of concerts billed as Don Messer's Violin. He also trademarked the name "Don Messer" and " Don Messer's Violin."
But his show soon ran up against competition from Martin, and, according to court documents, he had difficulty booking dates. Leahy's lawyers sent cease-and-desist letters to Martin, noting that Leahy had exclusive rights to the Don Messer name. When Martin refused to stop, Leahy turned to Attis for help.
Last February, Attis sued Martin in Nova Scotia, alleging that she was unlawfully using Messer's name. She asked for damages and an injunction. Her lawyer, Chip Sutherland, argued that the "personality rights" of dead celebrities belong to their estates and that Attis had full control over Messer's name and image.
Martin hit back with a countersuit against Attis. She also filed suit in Ottawa to throw out the trademarks on Messer's name. "All that Barbara Martin is doing is putting on concerts about Don Messer and his time," says her lawyer, Howard Knopf. "There is no law against that in Canada."
Martin argues that no one, including the CBC, which held the rights to the TV show, had ever complained before about her show.
Last month, Mr. Justice Arthur LeBlanc imposed a temporary injunction ordering Martin to refrain from using Messer's name until the case is heard at trial. He also told her to announce before every performance that her show is not authorized by the Messer family or the estate.
Lawyer Sutherland hails the injunction as an important step toward recognizing personality rights in Canada. But Knopf calls the injunction "an unfortunate ruling" that could have an impact on Canadians' free speech. He adds that the ruling will be appealed, and calls Attis "a disgruntled competitor."
Martin has, in fact, changed the name of her show to Memories of the Jubilee, but says the injunction has cost her ticket sales. Some theatre owners have even threatened to cancel performances.
But she won't quit. "I've worked 10 years without a salary," she says, noting that she puts on far more shows than Leahy. "It's all about money. It's as simple as that. When you look at my website and see how many shows I have, and you look at Leahy's and see how many he has, you can draw your own conclusions."
Attis is equally determined to forge ahead. "I appreciate the fact that my father's music is played, regardless of who plays it -- but don't use his name," she says. "Especially when I signed a legal contract with Frank Leahy giving him exclusive use of the name. Her attitude is, 'I'm going to do it and I don't care.' That kind of thing is very upsetting."
Could the two women ever drop the lawsuits, and work together on one show? Not a chance.
Martin says Leahy adapts Messer music, while she is more faithful to the original, and that she couldn't possibly work with his variations on the legend's style.
Attis won't even attend Martin's shows. "She has sort of bonded herself with several fiddlers from Ontario, and she feels that she's doing the right thing by them," says Messer's daughter. "I really don't understand it."
One thing the pair do agree on is that their feud is far from over. A trial on the lawsuits isn't likely for months, and there could be more appeals. "She is going to go down fighting, I suppose," says Attis with a sigh.
"Lord knows," says Martin, "what will happen when this is all over."