March 21, 2013 9:06am PT by Eriq Gardner
Rock Band Boston Involved in Copyright Termination Fight
Over the years, insiders in the music industry have expressed more than a feeling that this would be the year where there would be court battles that might forever shape the business. That's because changes to copyright law that went into effect in 1978 dictated that authors of work could terminate copyright grants 35 years after publication. Many song artists have done the math and filed termination notices to reclaim their works.
Now comes the lawsuits.
The latest one involves the popular late-70s band Boston, which exploded onto the rock scene in 1976 with an eponymous debut album that charted songs "More Than a Feeling," "Long Time" and "Peace of Mind." The band followed it up in 1978 with an album called Don't Look Back, whose title track became another big hit. But the band famously had incredible internal tension and fights with the record label and faded from the limelight after selling more than 30 million albums.
As it is now time for songs authors of the late 70s to attempt termination, and Boston had a particularly rocky road to fame, there's naturally now a legal drama that could create precedent for others.
On Tuesday, Boston's original co-manager Paul Ahern and Next Decade Entertainment filed a lawsuit in New York federal court against Tom Scholz, a songwriter who was an original member.
Scholz served a termination notice in January, looking to reclaim songs from the band's first two albums.
In response, Ahern is now in court arguing from the position of song publisher. He alleges that in 1975, a written agreement was made where "Ahern engaged and employed defendant Scholz to render, on an exclusive basis, his services as a songwriter, and defendant Scholz assigned to Ahern all musical works written by him prior to that date as well as those composed, created or conceived in whole or in part by him for a period of five years from that date of that agreement."
The lawsuit then says that in 1978, the parties modified their agreement. Ahern says he was working with an associate under the name P.C. Productions and that members of Boston entered into agreements with P.C. to manage their careers and produce songs to be delivered to Epic Records.
"The April 1978 Modification Agreement had no effect whatsoever on the 1975 Songwriter Agreement," says the complaint filed by attorney Stewart Levy at Eisenberg Tanchum & Levy.
Scholz, who along with the rest of his band was involved in a big lawsuit with CBS Records in the 1980s for allegedly failing to deliver a third album, seems to disagree.
According to his termination notice, which is attached to the complaint (read in full here), the compositions are governed by the 1978 Agreement. If so, the copyright grant arguably happened that year and might be eligible to be terminated soon -- according to Scholz' notice, it would be effectuated in 2015.
Further, the termination notice represents the '78 deal as a settlement (over a management dispute) and that prior to the execution, "Scholz took the position that the 1975 Agreement was void, voidable, or terminated," and that in 1978, there were material changes to the publisher relationship that constituted "a new grant of rights."
But Ahern says it is clear that the songs on the first album were written and released earlier than '78 and that the 1975 Agreement applies. As for songs from the second album, Ahern says that the 1975 Agreement provided for copyright grants five years from the signing -- disputing Scholz' alternative theory of a post-78 "constructive grant" -- and that regardless, "Scholz composed portions of some or all of the Second Album Compositions prior to January 1, 1978," allegedly making them ineligible to be terminated.
The lawsuit is seeking a declaratory judgment that Scholz has no title or interest in the songs. Interestingly, the lawsuit doesn't (at the moment) attempt to assert that the songs were works made for hire, which would also make them ineligible to be terminated. So far, the fight seems primed to offer some clarification on how to determine when copyright grants are made, with possibly some discussion of the working relationship between the parties.
Scholz' termination notice was filed with assistance from attorney Craig Pinkus at Bose McKinney & Evans.
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