4:16pm PT by Eriq Gardner
How the Legal Fight Over 'Y.M.C.A.' Could Change the Music Industry (Analysis)
In what may be the beginning of a major shake-up in the music industry, Victor Willis, the original lead singer of the Village People, has filed paperwork to regain control over his share of the copyright credit for 32 of the band's songs, including the hit "Y.M.C.A.."
Scorpio Music and Can’t Stop Productions, the two companies that administer publishing rights to the group's songs, have reacted by asking a Los Angeles judge for a judgment that Willis can't exercise so-called "termination" rights because he created the work as an employee in a "writer for hire" arrangement.
The story, first reported by the New York Times, is the latest in a trend we've written about before. Representatives for a number of prominent musicians, including Barbara Streisand, Brian Wilson, and the Eagles, have been exploring their right to exercise the once-obscure termination provision of the U.S. Copyright Act.
And there's good reason to believe the music industry will likely to be flooded with these types of termination notices very, very soon. Here's why:
In 1976, the U.S. Congress lengthened the copyright term, but as a fig leaf to artists who had created works at the early stage of their careers but handed their rights over without much bargaining power, legislators thought it wise to give artists another bite of the apple. So they allowed artists to enjoy the benefits of the latter stages of a copyright term by terminating a copyright grant.
However, in doing so, artists need to adhere to a strict protocol, including sending out precise termination notices during a short few-year window. Artists are allowed to terminate a copyright grant 35 years after first publishing, and since the Copyright Act amendments went into effect in 1978, it means that 2013 is the first year where musicians such as Bruce Springsteen and Victor Willis can effectuate a termination. Since these notices have to go out in advance, it also means that these artists are now under the clock to send out their termination notice or forfeit the right for the foreseeable future.
In other words, there's a strong incentive for termination notices to go out right now, especially on recordings made in 1978. By January 1st, authors of those works will have missed their window.
In the Willis case, the music publishers are already arguing that the band's songs were "works made for hire," but it's important to note that the Copyright Act defines different types of these.
The first is the most commonly known definition where a "work made for hire" is described as "a work prepared by an employee within the scope of his or her employment."
To apply this definition to what's now happening in the termination fight, it would mean that the musicians are deemed to be employed by the record companies as a result of the musician's recording agreement. If that argument flies, the companies will be the song's "author," meaning that the musicians have no termination rights.
The record industry would love for a judge to say that's the case, but there's reason to believe that even the music companies see it as a weak defense. After all, at the end of the last century, the recording industry saw fit to lobby for a provision in the the Satellite Home Viewer Improvement Act so as to amend the work-for-hire rules to be more favorable to them. (Many musicians reacted with outrage and the provision was repealed.)
As Mitch Glazier, the former Congressional staffer who attempted to lobby for the change before joining the RIAA (he was recently upped to #2 at the organization) once told us, the music industry "wanted (the Copyright Act) to be as explicit as possible so even if there's a sense (record companies) are covered, why leave argument for otherwise?"
If judges don't buy that musicians are employees, that might leave the music industry arguing that these songs should be classified as "works made for hire" because they fit the Copyright Act's other definition: "a work specially ordered or commissioned for use as a contribution to a collective work, as a part of a motion picture or other audiovisual work, as a translation, as a supplementary work, as a compilation..."
So, in essence, the industry would be arguing that because these songs were originally included on albums, they meet the standard of being "compilations," a weird argument to make considering the fact that many music companies have just spent the last few years fighting on such issues as their contractual ability to release singles on digital outlets on iTunes or their ability to win statutory damages on a per-song instead of per-album basis in fights with copyright infringers.
This is just the tip of the iceberg when it comes to all the legal uncertainties involved in the coming termination battles.
Other issues include joint authorship, such as whether producers and sound engineers should hold a piece of the copyright, as well as the scope of termination. According to one lawyer, Barry Slotnik at Loeb & Loeb, once record labels get hit with their own termination notices, it will open up the question of "whether there is a continuing right for the label to continue using the original work," as he says there's a "possibility that the right to terminate is a limited right."
Stay tuned. This issue is going to get turned up to a high decibel level pretty quickly.