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One of the big issues in entertainment law this past year was songwriters terminating copyright grants to wrest back control over songs. The year is ending with a bang as the estate of J. Fred Coots is terminating publishing rights on one of the biggest hits of the holiday season, “Santa Claus is Comin’ To Town.” The estate has filed a lawsuit against EMI that seeks a declaration confirming the validity of a termination notice sent to the music publisher.
Coots, along with fellow songwriter Haven Gillespie, wrote the song in 1934, which was first sung by Eddie Cantor, and hit the top of the charts. Since then, it has been covered by more than 150 musicians, including Bruce Springsteen, Destiny’s Child, Green Day, Justin Bieber, Lynyrd Skynyrd, and the Beach Boys.
The song was originally assigned to Leo Feist, who at the time ran a publishing company that was among the largest in the world. The assignment was renewed several times, including in 1981, after Congress a few years earlier had extended the copyright term. That year, Coots had sent a notice of termination before coming to an agreement with a company that was the successor in interest to Feist. Later, EMI acquired the company.
Coots died in 1985.
Two decades later, Coots’ heirs sent a new notice of termination to EMI.
In 2006, the estate reached an agreement with Warner Bros. Music Corporation to administer rights to Coots’ songs. The following year, Warner Bros., on behalf of the estate, sent a follow-up notice to EMI of termination on the popular holiday song.
EMI’s lawyers, however, argued that the work couldn’t be terminated again because Coots had already exercised his termination rights in 1981.
Now, the Coots’ estate is seeking a Florida federal court’s declaration that the 1981 notice was invalid and unenforceable and that the 2004 notice is in force. The plaintiff is also seeking compensatory damages.
EMI has given us this statement:
“US copyright law provides authors and their heirs with the one-time right to terminate a grant of US copyright. J. Fred Coots and his family exercised that right in 1981, and were then paid a significant amount – and continue to be paid significant amounts – for a new grant of rights. Their contention that the supposed failure to file the 1981 notice of termination with the Copyright Office is meaningful is completely inconsistent with the plain language of the Copyright Act. The heirs have no right to terminate a second time. Their claims are baseless and EMI fully expects that they will be dismissed.”
Add “Santa Claus is Comin’ To Town” to a list of songs, which includes “Y.M.C.A.,” “Funkytown,” and “Eye of the Tiger,” now in the midst of termination proceedings. Since artists are allowed to terminate a copyright grant 35 years after first publishing, and since the termination provision of US copyright law went into effect in 1978, there will likely be plenty more disputes as songwriters do the math.
Many of these termination attempts have, and will, set off curious legal questions, such as whether one co-songwriter needs cooperation from another co-songwriter to terminate or, as this latest case shows, what constitutes a “valid” termination notice. In many instances, judges will be tasked with playing music historian.
“Termageddon is nigh,” wrote Suffolk University law professor Stephen McJohn recently in a law paper rounding up the year’s top intellectual property stories. “Courts may be asked to determine the precise working arrangement of rock bands working in the 1970s, where the memories of key witnesses are likely to be affected by narcissism, narcotics, or necromancy (especially in the case of drummers, per Spinal Tap.)”
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