Baldwin v. EMI Feist, No. 14-182 (2d Cir. Jan. 29, 2016).
In the copyright termination case concerning "Santa Claus Is Comin' To Town," the Second Circuit denied defendant-EMI's application for a rehearing (by the panel or en banc).
Showing posts with label Termination. Show all posts
Showing posts with label Termination. Show all posts
October 9, 2015
Santa Clause Is Comin To Town Reverts To Author's Heirs In 2016
Baldwin v. EMI Feist Catalog, 14-182-cv (2d Cir. Oct. 8, 2015).
The Second Circuit held that EMI publishing owned rights to the song "Santa Clause Is Comin' To Town" under a 1981 grant, not a 1951 grant, and accordingly that a 2007 termination notice terminates EMI's interest in 2016, reversing the lower court's entry of summary judgment for EMI. The case details the complex statutory scheme under the 1976 Copyright Act which gave authors and their statutory heirs the right to terminate previously made grants of copyright under certain circumstances, and thereby to recapture some of the value associated with the works. 17 USC 203 and 304(c)-(d). Plaintiff sought a declaration that either a notice of termination served on the publisher in 2007 or another served in 2012, will, upon becoming effective, terminate EMI's rights to the song. The Second Circuit concluded that EMI owned rights to the song not under a 1951 agreement but instead under a subsequent 1981 contract, and that that the 2007 termination notice will terminate the 1981 agreement in 2016. Accordingly, plaintiff (the author's heirs) were entitled to a declaratory judgment.
The Court detailed the various rights of reversion under the Copyright Act, which permits the author of certain earlier works to terminate a grant of copyright (e.g., to a publisher, like EMI's predecessor). It then found that a 1981 Agreement not only granted EMI the future interest scheduled to revert to the author upon termination, it also replaced an earlier 1951 agreement as to the source of EMI's existing rights to the song. Applying New York common law, the Court held that the parties intended for the new contract to substitute for the old one. "Section 1 of the contract shows that they chose not only to have EMI receive the future interest that vested in [the author] upon service of the termination notice, but also to replace the 1951 Agreement as the source of EMI's existing rights in the Song." Thus, the failure to record a 1981 termination notice under the 1951 agreement was irrelevant to the question whether EMI presently owned the copyright in the Song under either agreement. Its rights to the renewal term were traceable to the 1981 agreement. Thus, that was all that matters for decided plaintiffs' termination notices pursuant to section 203.
The Court concluded that Plaintiff could terminate the 1981 agreement under section 203 (section 304 did not control), and that the 2007 termination notice terminated the 1981 agreement. Publication is a one time event that occurred in the 1930s. Because the 1981 grant was executed by the author and does not cover the right of publication, it was terminable under section 203 starting on December 15, 2016, which is the effective date of termination stated in the 2007 notice.
The Second Circuit held that EMI publishing owned rights to the song "Santa Clause Is Comin' To Town" under a 1981 grant, not a 1951 grant, and accordingly that a 2007 termination notice terminates EMI's interest in 2016, reversing the lower court's entry of summary judgment for EMI. The case details the complex statutory scheme under the 1976 Copyright Act which gave authors and their statutory heirs the right to terminate previously made grants of copyright under certain circumstances, and thereby to recapture some of the value associated with the works. 17 USC 203 and 304(c)-(d). Plaintiff sought a declaration that either a notice of termination served on the publisher in 2007 or another served in 2012, will, upon becoming effective, terminate EMI's rights to the song. The Second Circuit concluded that EMI owned rights to the song not under a 1951 agreement but instead under a subsequent 1981 contract, and that that the 2007 termination notice will terminate the 1981 agreement in 2016. Accordingly, plaintiff (the author's heirs) were entitled to a declaratory judgment.
The Court detailed the various rights of reversion under the Copyright Act, which permits the author of certain earlier works to terminate a grant of copyright (e.g., to a publisher, like EMI's predecessor). It then found that a 1981 Agreement not only granted EMI the future interest scheduled to revert to the author upon termination, it also replaced an earlier 1951 agreement as to the source of EMI's existing rights to the song. Applying New York common law, the Court held that the parties intended for the new contract to substitute for the old one. "Section 1 of the contract shows that they chose not only to have EMI receive the future interest that vested in [the author] upon service of the termination notice, but also to replace the 1951 Agreement as the source of EMI's existing rights in the Song." Thus, the failure to record a 1981 termination notice under the 1951 agreement was irrelevant to the question whether EMI presently owned the copyright in the Song under either agreement. Its rights to the renewal term were traceable to the 1981 agreement. Thus, that was all that matters for decided plaintiffs' termination notices pursuant to section 203.
The Court concluded that Plaintiff could terminate the 1981 agreement under section 203 (section 304 did not control), and that the 2007 termination notice terminated the 1981 agreement. Publication is a one time event that occurred in the 1930s. Because the 1981 grant was executed by the author and does not cover the right of publication, it was terminable under section 203 starting on December 15, 2016, which is the effective date of termination stated in the 2007 notice.
September 29, 2015
Attorney's Fees Awarded To Village People Member
Scorpio Music v. Willis, No. 11-cv-1557 (S.D. Cal. filed 9/15/15) [Doc. 280].
In a dispute over the percentage of copyright ownership over the Village People's hit songs (including "YMCA") that went to a jury trial, the Court held that an original member of the group and author (invidivually and jointly) of various songs was entitled to attorney's fees as the prevailing party. 17 USC 505. The court found that Mr. Willis was the prevailing party and that he achieved a high degree of success: he defeated Plaintiff's claim that he could not unilaterally terminate his grants of copyright under 17 USC 203, prevailed on a number of summary judgment motions brought on the grounds of statute of limitations and laches, and prevailed on 13 of the 24 compositions at trial (including YMCA, the most lucrative). Specifically, the Court found that granting fees would advance the purposes of the Copyright Act inasmcuh as Mr. Willis was "trying to get back what he transferred to Plaintiffs, parties with superior bargaining power, decades ago. An award of attorney's fees is justified to encourage authors like Willis to assert their rights to regain their copyright interests and to deter production companies and other transferees of copyright from attempting to interfere with those rights." Willis sought an award of approximately $527,000, and the Court did not find that an upward or downward adjustment was warranted. Costs of approximately $3,000 were also taxed.
In a dispute over the percentage of copyright ownership over the Village People's hit songs (including "YMCA") that went to a jury trial, the Court held that an original member of the group and author (invidivually and jointly) of various songs was entitled to attorney's fees as the prevailing party. 17 USC 505. The court found that Mr. Willis was the prevailing party and that he achieved a high degree of success: he defeated Plaintiff's claim that he could not unilaterally terminate his grants of copyright under 17 USC 203, prevailed on a number of summary judgment motions brought on the grounds of statute of limitations and laches, and prevailed on 13 of the 24 compositions at trial (including YMCA, the most lucrative). Specifically, the Court found that granting fees would advance the purposes of the Copyright Act inasmcuh as Mr. Willis was "trying to get back what he transferred to Plaintiffs, parties with superior bargaining power, decades ago. An award of attorney's fees is justified to encourage authors like Willis to assert their rights to regain their copyright interests and to deter production companies and other transferees of copyright from attempting to interfere with those rights." Willis sought an award of approximately $527,000, and the Court did not find that an upward or downward adjustment was warranted. Costs of approximately $3,000 were also taxed.
August 3, 2015
Ray Charles' Foundation Can Challenge Notices His Heirs Served To Terminate Copyright Grants To The Foundation
The Ray Charles Foundation v. Robinson, No. 13-55421 (9th Cir. Opinion dated July 31, 2015).
The 9th Circuit holds that that the Ray Charles Foundation, the sole beneficiary of Ray Charles’s estate, had standing to challenge the validity and effectiveness of notices of termination of copyright grants conferred by Charles to the predecessors of Warnter/Chappell Music. The Court found that the Foundation was a real party in interest because the termination notices affected its right to royalties, and its claims fell within the statutory zone of interests. Accordingly, it had standing to sue to challenge whether the underlying works were made for hire and thus not subject to the termination provisions of 17 USC 203 and 304(c).
The 9th Circuit holds that that the Ray Charles Foundation, the sole beneficiary of Ray Charles’s estate, had standing to challenge the validity and effectiveness of notices of termination of copyright grants conferred by Charles to the predecessors of Warnter/Chappell Music. The Court found that the Foundation was a real party in interest because the termination notices affected its right to royalties, and its claims fell within the statutory zone of interests. Accordingly, it had standing to sue to challenge whether the underlying works were made for hire and thus not subject to the termination provisions of 17 USC 203 and 304(c).
January 23, 2014
11th Circuit Clarifies Author's Standing When Publisher Registers Copyright As Author's Assignee
Smith v. Casey, No. 13-12351 (11th Cir. Jan. 22, 2014) (decision here).
At issue in this appeal is whether the author of a musical composition who assigned his rights in exchange for royalties may rely for purposes of standing to sue for infringement under the Copyright Act on a registration his publisher filed. The 11th Circuit found that the lower court erred in concluding that the estate lacked statutory standing to sue for copyright infringement.
The basic facts are this. Around the same time a song called "Spank" was recorded, Harrick Music, Inc. (Harrick Music), a publishing company affiliated with the record label Sunshine Sound, registered a copyright for the musical composition “Spank,” identifying Smith as composer and itself as claimant. Harrick Music checked a box on the registration indicating the song was not a composition made for hire. In the ensuing years, Smith acquiesced in Harrick Music’s administration of the “Spank” composition copyright, but, he alleged, the company never remitted a cent to him. According to the complaint, neither did Sunshine Sound. Under Smith's Recording Agreement with Sunshine and the form songwriter’s agreement attached to it,
however, Smith was owed percentage royalties for the song’s exploitation in exchange for assigning his rights to it. So on November 28, 2011, shortly before his death, Smith through counsel sent a cease-and-desist letter revoking Harrick Music’s authority to administer “Spank.” And Smith also filed with the Copyright
Office four Notices of Termination, seeking to formally record his revocation. Despite this, the defendants continued to commercially exploit the composition, and thereafter Smith's estate sued for infringement of the composition (not the sound recording).
Two defendants (not Sunshine or Harrick) moved to dismiss, and the district court concluded Smith lacked statutory standing to pursue his copyright claim and sua sponte dismissed that count with prejudice as to all of the defendants. Harrick Music, not Smith or his estate, had registered the copyright, the district court noted, and registration was a necessary precondition to filing suit for infringement.
On appeal, the 11th Circuit first examined sections 411 and 501 of the Copyright Act: "The 1976 Copyright Act’s legislative history explains that Congress intended 'beneficial owner,' as the term is used in § 501(b), to 'include . . . an author who had parted with legal title to the copyright in exchange for percentage
royalties based on sales or license fees.'" Continuing,
Although the 11th Circuit reversed on the standing issue, it found that the District Court properly dismissed plaintiff's declaratory judgment claim.
At issue in this appeal is whether the author of a musical composition who assigned his rights in exchange for royalties may rely for purposes of standing to sue for infringement under the Copyright Act on a registration his publisher filed. The 11th Circuit found that the lower court erred in concluding that the estate lacked statutory standing to sue for copyright infringement.
The basic facts are this. Around the same time a song called "Spank" was recorded, Harrick Music, Inc. (Harrick Music), a publishing company affiliated with the record label Sunshine Sound, registered a copyright for the musical composition “Spank,” identifying Smith as composer and itself as claimant. Harrick Music checked a box on the registration indicating the song was not a composition made for hire. In the ensuing years, Smith acquiesced in Harrick Music’s administration of the “Spank” composition copyright, but, he alleged, the company never remitted a cent to him. According to the complaint, neither did Sunshine Sound. Under Smith's Recording Agreement with Sunshine and the form songwriter’s agreement attached to it,
however, Smith was owed percentage royalties for the song’s exploitation in exchange for assigning his rights to it. So on November 28, 2011, shortly before his death, Smith through counsel sent a cease-and-desist letter revoking Harrick Music’s authority to administer “Spank.” And Smith also filed with the Copyright
Office four Notices of Termination, seeking to formally record his revocation. Despite this, the defendants continued to commercially exploit the composition, and thereafter Smith's estate sued for infringement of the composition (not the sound recording).
Two defendants (not Sunshine or Harrick) moved to dismiss, and the district court concluded Smith lacked statutory standing to pursue his copyright claim and sua sponte dismissed that count with prejudice as to all of the defendants. Harrick Music, not Smith or his estate, had registered the copyright, the district court noted, and registration was a necessary precondition to filing suit for infringement.
On appeal, the 11th Circuit first examined sections 411 and 501 of the Copyright Act: "The 1976 Copyright Act’s legislative history explains that Congress intended 'beneficial owner,' as the term is used in § 501(b), to 'include . . . an author who had parted with legal title to the copyright in exchange for percentage
royalties based on sales or license fees.'" Continuing,
Under this definition, the estate has a sufficient ownership interest for standing under § 501(b). According to Smith’s allegations, he never signed any agreement giving Harrick Music the right to exploit the “Spank” copyright. But even were we to treat Smith’s agreement to permit Sunshine Sound to execute the form songwriter’s contract appended to his Recording Agreement as acquiescence to its terms for the “Spank” composition, Smith still would only have assigned his rights to the musical composition in exchange for royalties. Thus, he has at least a beneficial interest that satisfies § 501(b) of the Copyright Act.The twist was that Harrick, not Smith, had filed the registration. Nonetheless, the 11th Circuit found that "The district court’s construction of § 411(a) was too narrow. Harrick Music registered a claim to copyright in the 'Spank' composition, specifically identifying Smith as the composer and informing the Copyright Office the work was not made for hire. Nothing in § 411(a) indicates that a composer who has agreed to assign his legal interest in a composition, along with the right to register it, in exchange for royalties, may not rely on the registration his assignee files. Where a publisher has registered a claim to copyright in a work not made for hire, we conclude the beneficial owner has statutory standing to sue for infringement." (Emphasis added).
Although the 11th Circuit reversed on the standing issue, it found that the District Court properly dismissed plaintiff's declaratory judgment claim.
September 11, 2013
YMCA Termination Rights
From the New York Times (article here):
A Copyright Victory, 35 Years Later
Victor Willis, a former member of the Village People, is set to take control of a share of the copyright to songs he wrote for the group.
November 27, 2012
Article re: Copyright Termination in 2013
See Ryan Davis, "Copyright Termination For '70s Hits Won't Spark Lawsuit Fever" (Law360, New York; Nov. 26, 2012). (Link to article; registration required).
Article summary (first paragraph): "Musicians who recorded hit songs in the late 1970s will gain the right to reclaim ownership of their work starting in January under a 1978 copyright law provision, and while record labels are expected to fight to retain control of lucrative music, 2013 is unlikely to bring a flood of litigation, attorneys said."
The article concerns the reclamation of rights by authors that were licensed or transferred after 1978, pursuant to section 203 of the Copyright Act. Generally, termination rights may be effected after 35 years from the grant. Id. Thirty-five years from 1978 is...2013!
Lawyers interviewed for the article predicted that there will be few actually litigated cases, and instead termination notices will serve as a jumping-off point for contract re-negotiations between artists and record labels.
Article summary (first paragraph): "Musicians who recorded hit songs in the late 1970s will gain the right to reclaim ownership of their work starting in January under a 1978 copyright law provision, and while record labels are expected to fight to retain control of lucrative music, 2013 is unlikely to bring a flood of litigation, attorneys said."
The article concerns the reclamation of rights by authors that were licensed or transferred after 1978, pursuant to section 203 of the Copyright Act. Generally, termination rights may be effected after 35 years from the grant. Id. Thirty-five years from 1978 is...2013!
Lawyers interviewed for the article predicted that there will be few actually litigated cases, and instead termination notices will serve as a jumping-off point for contract re-negotiations between artists and record labels.
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