2013 marked the first year that sound recording and musical composition copyrights could revert from labels and publishers, respectively, to artists and songwriters. The Copyright Act of 19761, which became effective in 1978, states that the termination of the grant of copyright may be effected at any time “during a period of five years beginning at the end of thirty-five years from the date of execution of the grant.”2 A copy of the notice must be recorded in the Copyright Office before the effective date of termination, and termination of the grant may be effected regardless of any agreement to the contrary, including an agreement to make a will or to make any future grant.3 While the procedures for initiating a reversion are fairly clear, the path to reversion had been riddled with ambiguity and uncertainty as to whether reclaiming copyrights is actually a viable option for artists and songwriters.
Roadblocks to Reversion
Many acts, including Billy Joel, Kool & the Gang, and Roberta Flack have filed with the United States Copyright Office for termination of the transfer of their master rights to their labels.4 Unfortunately, according to their managers and lawyers, instead of having their rights reverted to them, they have been ignored by the labels.5 This is because the main roadblock to copyright reversion has been determining whether or not sound recordings qualify as works made for hire.
The 1976 Act stipulated that works made for hire are exceptions to reversion, as the work is owned by the creator’s employer from the very beginning, rather than being a rights transfer.6 In addition to works prepared by employees within the scope of their employment, nine categories of works that qualify as works made for hire are listed, but sound recordings are not among these.7 However, in 1999, at the request of the RIAA, Congress added sound recordings to the list.8 This designation meant that musicians were employed by the label and therefore, they were not entitled to reclaim ownership of their work.9
After experiencing backlash from the artist community, several hearings were held before the U.S. House of Representatives Subcommittee on Courts and Intellectual Property, in which artists like Sheryl Crow testified.10 Ultimately Congress approved legislation that repealed the law designating sound recordings as works for hire,11 and President Clinton signed the bill into law in 2000. In music publishing, there is not generally a work for hire provision, so once the appropriate paperwork is filed, the songwriter often gets his ownership back unless the publisher manages to retain the work at a reduced-profit rate.12
The Label Argument
The label argument is really quite a simple one, and relies largely on contractual terms as well as the labels’s position of leverage. Most contracts say that the sound recording is a work for hire and the parties generally intend from the beginning that the sound recording will be considered a work for hire, this according to Eric German, an entertainment litigation and intellectual property and technology attorney at Mitchell Silverberg & Knupp.13 While the validity of these provisions could be debated in court, the fact of the matter is that not many recordings produce significant revenue after 35 years, so even in victory, the artist stands little to no chance of making back their legal expenses.14
The Artist Argument
As stated earlier, an employee’s work, done within the scope of employment, qualifies as work made for hire. Generally speaking, employees receive a specified salary, which most recording artists don’t.15 Instead, artists receive cash advances that are recoupable against future royalties. This, added to the fact that Congress deliberately removed sound recordings fromt the list of works eligible to be works made for hire supports artists’ view that they are not employees and thus their sound recordings are not works made for hire. Therefore, the artists should have the right to recapture their sound recording copyrights.16
Others have argued that sound recordings are analogous to films, which are exempted from reversion because they qualify as collective works.17 Similar to films, which can have several creators, songs can have several authors including writers, producers, and musicians. However, according to prevailing views in the current industry, that may be a bit of a stretch.18
Labels and artists should renegotiate royalty percentages on expiring masters and those that have past the 35-year point. This would be far more cost-efficient than litigation. Both parties would save money and artist’s works would be protected by an entity that can effectively deter infringers. This is important as artists may not have the resources to do so on their own. The recent extension of copyright protection for masters in the E.U. could serve as a model for resolving this issue.
The E.U. recently extended its copyright duration from 50 years to 70 years and includes various clauses that could be beneficial to artists.19 For example, there is a requirement that labels ensure all recordings are commercially available, and if not, the artist can release the recordings themselves.20
Case Law/ Practical Applications
Victor Willis, the original lead singer of the Village People21 appears to be the first artist associated with a hit song from the disco era to publicly announce that he has used his termination rights to regain control of his work.22 Scorpio Music S.A., a French publisher, and Can’t Stop Productions, Inc., its United States sub-publisher allege that between 1977 and 1979, they hired Willis to translate the lyrics of and/or create new lyrics for certain musical compositions which were owned and published in France by Scorpio.23 Copyright registrations for the 33 musical compositions at issue, including the hit song “Y.M.C.A.,” credit Willis as being one of several writers. By way of Adaptation Agreements, Willis transferred his copyright interests in the compositions to Can’t Stop, which then assigned to Scorpio its rights in the lyrics.24
In January 2011, Willis presented to Scorpio and Can’t Stop a notice of termination of his grants of copyright with respect to the compositions, to which they responded by filing suit and challenging the validity of his claim.25 The Southern District Court of California held that Willis could unilaterally terminate his grants under 17 U.S.C. § 203, because Willis granted his copyright interests in the Compositions separately from the other co-authors.26
Though Willis’s case dealt with compositions, which have not faced the obstacles that sound recordings have, this case still set an important precedent, and will hopefully expedite the reversion process for other songwriters, and perhaps sometime soon for recording artists as well.
By Cheniece Webster‐Jones
2. 17 U.S.C.A. § 203 (West) 203(a)(3)
3. Id at (a)(4-5)
4. http://www.billboard.com/biz/articles/news/1483926/reversion-rights-will-2013-be-a- game-changer
8. Billboard May 20, 2000. Vol. 112, No. 21. ISSN 0006-2510
9. http://www.billboard.com/biz/articles/news/1483926/reversion-rights-will-2013-be-a- game-changer
12. http://www.billboard.com/biz/articles/news/1483926/reversion-rights-will-2013-be-a- game-changer
13. http://www.billboard.com/biz/articles/news/1483926/reversion-rights-will-2013-be-a- game-changer (German explains the rationale fro drafting contractual language that includes sound recordings characterized as works made for hire.)
16. http://www.artistshousemusic.org/videos/35+year+copyright+reversion+clause+works+ for+hire+and+the+future+of+the+music+business (Jay Cooper, a music lawyer based in Los Angeles, explains what the 35-year reversion clause of the Copyright Act of 1978 is, and how it’s likely to play out when that clause falls due in 2013.)
17. http://www.billboard.com/biz/articles/news/1483926/reversion-rights-will-2013-be-a- game-changer
18. Id. (Bob Donnelly, a lawyer with Lommen Abdo who was heavily involved in the1999-2000 work-for-hire dispute claims collective works were created to cover things like encyclopedias, not sound recordings.)
19. http://www.billboard.com/biz/articles/news/publishing/1170187/eu-extends-copyright- term-to-70-years#sthash.GJpEQl2Y.dpuf
21. Scorpio Music (Black Scorpio) S.A. v. Willis, No. 11CV1557 BTM RBB, 2013 WL
6865559, at *1 (S.D. Cal. Dec. 26, 2013)
22. http://www.nytimes.com/2013/09/11/arts/music/a-copyright-victory-35-years- later.html?_r=0
23. Id. at *1