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Who knows whether U.S. Supreme Court Justice Ruth Bader Ginsburg watches Hawaii Five-0, but thanks to something she wrote last year, the theme song may have to change.
On Thursday, CBS was hit with a copyright infringement lawsuit from the children of the late Morton Stevens, a prolific, Emmy-award winning film and television score composer whose work includes the trumpet-and-drums opening to the CBS crime procedural. Stevens died in 1991, which, according to a complaint filed in California federal court, was about six years before the renewal copyright term for the Hawaii Five-0 theme commenced. That’s important because under copyright law, for works created before 1978, when an author dies before the original term of a copyright grant expires, rights revert to the heirs.
Notwithstanding this quirk of copyright law, CBS is said to have filed a renewal registration for the theme in 1997. The lawsuit says that CBS didn’t have the right to do this. The original incarnation of Hawaii Five-0 ran on CBS from 1968 to 1980, and the registration might not have caused any issues if it were not for CBS’ decision to reboot the series in 2010 and if not for what the U.S. Supreme Court ruled last year in a case concerning rights to Martin Scorsese‘s classic film Raging Bull.
In that Supreme Court decision, Ginsburg took a look at a lawsuit filed by Paula Petrella, whose father wrote works that became the basis of Raging Bull but died before the end of the original copyright term. The question in the case was whether Petrella’s long delay in filing the lawsuit should preclude her claims against MGM and 20th Century Fox. Ginsburg decided not to impose a “sue soon, or forever hold your peace” rule for copyright lawsuits.
This means that the Stevens family may be able to get around the fact that they were arguably put on notice in 1997. Representing the Stevens children is attorney Henry Gradstein, who previously represented the ex-agent of late Hawaii Five-0 creator Leonard Freeman in a $100 million lawsuit over the reboot. Gradstein failed in that case, but his familiarity with the show’s rights probably led him to figuring out another opening. His firm and Robert E. Allen also represented the son of T. Rex frontman Marc Bolan in a successful challenge on song rights in a copyright reversion case.
The new lawsuit alleges CBS has prepared a “new derivative recording of the Hawaii Five-0 Theme and embodied it in the New Series and the Soundtrack Album.”
The Stevens family is seeking actual damages and profits or alternatively, statutory damages. The lawsuit also demands an injunction. In last year’s Supreme Court opinion, Justice Ginsburg wrote that the defense of laches couldn’t bar recovery of damages brought within the applicable three-year statute of limitations while letting judges figure out whether a delay in filing should impact requested injunctive relief.
Responding to the lawsuit, a CBS spokesperson commented, “We were surprised and disappointed by the lawsuit filed by the heirs of Morton Stevens more than five years after the new Hawaii Five-0 series premiered, without any prior discussion between the parties. Although we have great respect and appreciation for Mr. Stevens’ work on the original Hawaii Five-0 theme song, his heirs’ claims are without merit, and we will vigorously defend this case.”
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