October 03, 2011 9:17am PT by Eriq Gardner
Judge Asked to Reject Resistance to 'Y.M.C.A.' Copyright Termination (Exclusive)
The sound of dissonance over a provision of U.S. copyright law which allows recording artists and songwriters to take back ownership over creative works is growing louder. On Wednesday, attorneys for Victor Willis, the original lead singer of the Village People, delivered arguments to a California federal judge why a copyright grant to songs such as "Y.M.C.A." should be terminated over the objections of the two companies that administer publishing rights.
For more than three decades, ever since Congress amended the copyright code to allow artists to wrest back control on works 35 years after creation, artists have been waiting patently to do so. The "termination" issue has loomed as a ticking time bomb for record labels and music publishers, and Willis' move earlier this year to effectuate his termination made headlines and was much discussed by folks in the music industry.
As the clock winds down for other artists to send out termination notices on works created in the late-1970s and early-1980s or forfeit their right to do so in the foreseeable future, some musicians are chomping at the bit. For example, Jim Peterik, co-writer of the iconic 1982 rock song, "Eye of the Tiger," first made famous in Rocky III, is ready to send his own termination notice. Helping him is a firm called Copyright Recapture, which reportedly has signed up 125 songwriters as clients.
With potentially hundreds of millions of dollars at stake, publishers are not going to give up rights without a fight.
In July, after Willis delivered the bad news to Scorpio Music and Can’t Stop Productions (CSP), the two companies raised the first significant legal challenge in the music industry on this termination issue by seeking a declaration in California federal court. They argued that Willis' copyright pullback should be deemed improper because the songs were created by several authors -- not just Willis -- as works-made-for-hire, and that Willis was barred from contesting his status as a "writer for hire" by not objecting sooner.
Last week, Willis asked a judge to dismiss the claims from Scorpio and CSP.
The first issue in this case is whether rights to a song created by multiple authors can be terminated by a single co-author. The applicable section of copyright law reads:
"In the case of a grant executed by one author, termination of the grant may be effected by that author. In the case of a grant executed by two or more authors of a joint work, termination of the grant may be effected by a majority of the authors who executed it."
Willis' attorneys say that the publishers are misreading this section in making the argument that Willis needs other Village People members to join his cause. Willis' side stresses the singular nature of the word, "grant," and believe the publishers to be conflating the creators from the terminators. To support the idea that a majority of authors can effectuate a termination, but that it's not a requirement, third-party legal analysis of the provision is provided as well as the established practices of the music industry where single co-owners are allowed to license or assign a copyright.
Next comes the issue of "works made for hire," or whether Willis was employed at the time of creation and thus, handed over copyright per the scope of his employment. If such is the case, Willis isn't really the "author" in the eyes of U.S. Copyright Law and has no right to terminate.
The music publishers present a series of late-1970s agreements between Willis and CSP to show an employment relationship, but Willis' attorneys point out that the contracts don't use the terms, "employee" or "writer for hire," despite the Copyright Act's purported requirement that parties expressly agree to such an arrangement if there is one. Further, Willis' side offers a legal analysis of whether such an employment situation could be construed from factors established by past courts -- it finds none and says the plaintiffs haven't done much analysis here -- and points to the language of the grant itself, which "assigns" rights.
As for whether Willis is barred by the statute of limitations and other doctrines from objecting to his alleged "author fire hire" status, the singer's attorneys call the claim "absurd on its face" with no "basis in fact or law."
The motion to dismiss filed by Willis last week isn't all bad news for the music industry, however.
On one hand, Willis challenges the plaintiff's notion that termination is merely limited to a discussion of royalty percentages. But on the other, Willis says that he's not disputing the continued exploitation of existing derivative works from prior licensing agreements made. That'll help, among others, record labels that have made "Y.M.C.A." sound recordings after licensing rights to the song.
Here's Willis' arguments in full on why publisher resistance to his copyright grant termination should be rejected: