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Almost a year ago, Kanye West appeared at TMZ headquarters and said, “When you hear about slavery for 400 years … that sounds like a choice … It’s like we’re mentally imprisoned.”
The insensitive comment immediately provoked controversy, but what was left unsaid by West was his own lack of freedom. If West wished to alternatively make the case he is a slave — as he is essentially now doing in court — all he had to do was point to a provision of his music publishing contract with EMI that literally forbids him from not working. Here’s what the contract states:
“You (Mr. West) hereby represent and warrant that to [EMI] that You will, throughout the Term as extended by this Modification, remain actively involved in writing, recording and producing Compositions and Major Label Albums, as Your principle occupation. At no time during the Term will you seek to retire as a songwriter, recording artist or producer or take any extended hiatus during which you are not actively pursuing Your musical career in the same basic manner as You have pursued such career to date. (The preceding representation shall not be deemed to prevent You from taking a vacation of limited duration.)”
This portion of West’s music publishing contract came up in the lawsuit he lodged in Los Angeles Superior Court in late January. When West initially filed, the complaint was almost entirely redacted, but thanks to EMI’s first move in the dispute (more on that in a moment), there’s now a full copy available for all to see. (Read in full here.) And West’s inability to retire will likely be a factor as this dispute moves forward because one of the judge’s first tasks in the case will be determining whether this is a controversy about West’s employment or rather about West’s intellectual property.
West seeks to “obtain his freedom” from publishing and record contracts, and as the basis for doing so, he cites California Labor Code section 2855, which limits personal service contracts to no more than seven years. It’s the law that famously provided Gone with the Wind actress Olivia de Havilland her freedom from Warner Bros. in the 1940s after the studio repeatedly extended her contract upon suspensions for her refusal to take roles. It’s also a law that’s gotten attention in the ongoing legal war between 21st Century Fox and Netflix over poached executives.
According to West’s court papers, he’s been “laboring” for EMI since 2003, when during the recording of College Dropout he signed a “lopsided” contract with the music publisher. The deal obligated West to deliver a minimum number of new songs good enough to be released by major labels. West got an advance of a few hundred thousand dollars plus royalties as defined by the contract. After College Dropout came out to great success and West followed up the work with other great musical achievements, EMI exercised its options to extend the agreement for additional terms.
Now West is drawing a hard line.
“It makes no difference under section 2855 whether the contract is otherwise fair, or whether the employer has fulfilled its end of the bargain,” states the complaint. “It matters only whether the services began more than seven years ago. There can be no dispute that this happened here. The seven-year period ended under this contract on October 1, 2010. For more than eight years thereafter — more than double the maximum seven-year period California law allows — EMI has enforced rights in violation of California law, depriving Mr. West of the ‘breathing period’ that California law mandates.”
EMI may have known that this day would be coming. As detailed in West’s lawsuit, his publishing contract included a disclaimer that “for purposes of California law,” these deals don’t “constitute contracts for any of [West’s] personal services.” Instead, the contract requires West merely to “deliver” to EMI his ownership interest in the songs he writes.
Here is where West’s dispute begins to depart from the typical playbook in these types of cases.
After all, West is not the first to cite California’s seven-year rule. From Olivia Newton-John in the early 1980s to more recently, Thirty Seconds to Mars, there have been other songwriters and recording artists who have made a play for contractual freedom. Thanks to amendments to California law, record labels and music publishers can now sue to recover the “lost profits” of uncompleted albums from acts who don’t fulfill their contractual commitments. Typically, this dynamic leads to a renegotiation whereby the artists stay put, but obtain more favorable royalty arrangements.
But West’s lawsuit goes the extra few yards.
The hip-hop star is not only seeking the ability to sign new deals with other record labels and music publishers, but West’s lawsuit also alleges that EMI has been unjustly enriched by millions of dollars. He seeks a declaration that EMI may not exploit the compositions West has already delivered to the company after October 2010. In other words, West wants the judge to declare him the owner of these works.
That has provided EMI with the opening to take the case from state court to federal court, which has exclusive jurisdiction over copyright law. On Friday, attorneys for the music publisher filed a notice of removal.
“The rights to, ownership interest in, and exploitation of copyrightable musical compositions are precisely the subject matter of the Copyright Act,” states the notice.
EMI’s lawyers are also questioning whether West has standing to sue through his dissolved companies, but the larger gambit by the publisher entails getting this case away from a California state court to set up the question of whether West’s claims are preempted by copyright law. Although EMI’s notice doesn’t explicitly mention it, federal law has its own statutory scheme for copyright reversion. Unfortunately for West, under the termination rules, authors must wait 35 years after the date of publication to reclaim rights.
At the prime of his career, West doesn’t want to sit back that long. Thus comes his attempt to frame the controversy as an employment dispute wherein justice requires he not only be granted his freedom, but also the fruits of his labor too.
In the publishing deal, EMI may have attempted to foreclose a seven-year argument with language about how West wasn’t contributing “personal services,” but West’s attorneys at Quinn Emanuel say this really just “reflects EMI’s awareness that its contract with Mr. West violated California public policy.”
West’s lawsuit points to Olivia de Havilland for precedent that “employer-inserted clauses [are] unenforceable,” before nodding to how that contract provision forbidding a retirement is “comically inconsistent” with any notion that West’s deal doesn’t constitute one for his personal services.
As the complaint states, “EMI would have had no interest in ensuring that Mr. West continued to write, record, and produce songs, and continue to ‘actively’ pursue his music career, unless it was party to a contract with Mr. West that required him to render personal songwriting, recording, and producing services.”
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