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“You say stop and I say go go go, oh no” — Paul McCartney and John Lennon.
On Wednesday, Paul McCartney responded to Sony/ATV’s suggestion that he brought an “unripe” lawsuit seeking confirmation he’ll reclaim rights to Beatles songs next year. In a letter to the judge, his lawyer Michael Jacobs writes, “Delay would not simplify the parties’ dispute, but it would prejudice McCartney. As long as Sony/ATV refuses to disavow any right to sue for breach of contract, McCartney has a cloud over the title to his works, which devalues his rights.”
McCartney sued in January and looked for assurance that under §304(c) of the U.S. Copyright Act, he has the ability to grab back rights to works by serving a notice of termination. The legendary musician expects to do so in 2018, but he’s worried, due to a case involving a Sony affiliate over in the U.K. There, an English court ruled that Duran Duran’s contractual promise to not transfer its interest in copyrights foreclosed the band’s ability to terminate a grant of rights. The British justice believes it isn’t necessary to heed an aspect of American copyright law that states that termination of a grant “may be effected notwithstanding any agreement to the contrary.”
In reaction to the lawsuit, Sony sent its own letter to the judge in anticipation of a conference that would lay out a forthcoming motion to dismiss.
Sony’s lawyer wrote that the publisher had made no statement challenging the validity of McCartney’s termination notices, that the Duran Duran case was still pending on appeal and that without an outcome, McCartney “impermissibly seeks an advisory opinion on a hypothetical claim.”
On behalf of McCartney, Jacobs retorts, “By seeking to dismiss this lawsuit, Sony/ATV intends to leave McCartney in suspense. Is he exposed to claims for damages if he relies on his undisputed rights under U.S. copyright law or not? Will it sue him for breach of contract or not? Can he license his copyrights as his termination notices become effective, or does that present legal risks? Will third parties be willing to negotiate with McCartney, and at what reduction in price, concerned that they may ultimately face a Sony/ATV lawsuit for interference with contractual relations?”
It’s suggested that Sony/ATV could sign an unconditional covenant not to sue and eliminate the threat (both to McCartney and third parties who might wish to make deals with him). Absent that, the New York federal judge is told to exercise jurisdiction and resolve the situation.
Sony is also arguing that U.K. law applies, and so it makes sense that a U.K. judge would tackle any case.
Specifically, its lawyer Donald Zakarin wrote, “Here, Plaintiff is a U.K. citizen and the Grants were negotiated and entered into in the U.K. with U.K. companies with respect to songs presumably written in the U.K. in return for payment in the U.K.”
McCartney is holding up the American flag.
Jacobs responds, “Because McCartney’s termination notices apply only to his rights arising under U.S. copyright law, the Court need not undertake a traditional conflicts of laws analysis.”
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