July 18, 2013 10:16am PT by Eriq Gardner
Legal Fight Over T Rex Songs Portends Music Industry Battles
As the fathers of rock music have bowed to the inevitability of mortality, their sons, daughters and other statutory heirs could soon be sending jarring vibes across the music industry.
Last week, Rolan Feld, the son of T Rex frontman Marc Bolan, filed a lawsuit in California federal court that seeks a declaration that he is now the sole owner of many of Bolan's famous songs like "Bang a Gong (Get It On)" and "Ride a White Swan."
Feld was a few days short of his second birthday when his father died in a 1977 car accident. He's now seeking at least $2 million in damages over a music publisher's continued exploitation of songs.
But this is only a start.
Feld is being represented by Helen Yu of Yu Leseberg, who oversees and administers the estate's intellectual property. The lawsuit was notably drafted by Robert Allen, former general counsel of Universal Music Publishing Group and now a member of Los Angeles-based firm Gradstein and Marzano. We hear that this is the first of a series of lawsuits that will explore an often overshadowed area of copyright law.
The copyright term is long-lasting -- 95 years from publication for many works.
What is less recognized is that for works created before 1978, the term is divided into an initial term of 28 years followed by an extended or renewal term lasting an additional 67 years. Rights to the latter term belong to the living author unless he or she has entered into an agreement transferring those rights. What is even less appreciated is what happens when an author dies during the initial term. In that instance, later rights automatically belong to the author’s heirs, and rather incredibly, not even the musician's will can change that.
In a 1990 ruling involving Alfred Hitchcock's Rear Window that went all the way to the U.S. Supreme Court, Justice Sandra Day O'Connor articulated Congress' intention for splitting up the copyright term this way.
"Congress attempted to give the author a second chance to control and benefit from his work," she wrote. "Congress also intended to secure to the author's family the opportunity to exploit the work if the author died before he could register for the renewal term."
Feld is now looking to obtain this benefit, and the defendant music publisher -- Westminster Music Ltd., said to be doing business in the U.S. as Essex Music International -- is objecting.
According to the lawsuit, "Notwithstanding the death of Marc Bolan prior to the vesting of the renewed and extended term and Defendants' knowledge thereof, Defendants continue to claim ownership of and administer the Compositions in the United States after the expiration of the initial term of copyright in and to each of the Compositions."
In many instances when an author or his or her heirs seeks to grab back rights -- either because of an automatic copyright reversion or through a maneuver called "termination" -- a publisher will argue that the work was made in an employment context as a "work made for hire." In such cases, it's the publisher who is deemed to be the true author as far as the law goes.
In the case of the T Rex songs, public copyright registration records don't indicate any work made for hire issues. Instead, we hear that there could be defenses raised about the right to exploit derivative works as well as issues involving foreign law, which doesn't have the same reversion protocol.
In the Supreme Court case over Rear Window, Hitchcock, star Jimmy Stewart and MCA were taken to court by the estate of the literary agent who represented the author who wrote the original story that served as the basis for the 1954 film. The defendants were accused of violating the derivative rights to "It Had to Be Murder" by continuing to show Rear Window on television after the rights to the story had reverted.
O'Connor's conclusion was that "the grant of rights in the pre-existing work lapsed and, therefore, the derivative work owners' rights to use those portions of the pre-existing work incorporated into the derivative work expired. Thus, continued use would be infringing ..."
In other words, MCA lost. (Soon after, the parties came to a licensing agreement.)
Now, Feld is pointing to ways that the defendants are allegedly exploiting T Rex songs, streaming it on a MySpace web page and licensing others to use the composition. Thus, there's allegations that the publishers have committed copyright infringement and conversion and that Feld is entitled to millions of dollars in damages.
The publishers couldn't be reached for comment.