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In what could be the beginning of a transatlantic battle testing an obscure provision under U.K. copyright law, Warner Chappell Music has initiated civil proceedings in New York against Bourne Co. over who has worldwide rights to works composed by Jimmy Van Heusen.
Van Heusen, an American songwriter, wrote many hits for Frank Sinatra including “Love and Marriage,” “Come Fly With Me,” and “My Kind of Town.” Collaborating with various lyricists, Van Heusen also won four Academy Awards with “Swinging on a Star” for Going My Way, “All the Way” for The Joker Is Wild, “High Hopes” for A Hole in the Head and “Call Me Irresponsible” for Papa’s Delicate Condition. He also wrote songs for such films as Bells of St. Mary’s and Ocean’s Eleven, including “Ain’t That a Kick in the Head?” performed by Dean Martin.
A summons filed on Monday in New York Supreme Court by Warner Chappell (read here) doesn’t identify which works are in dispute, but objects to how Marco Berrocal, doing business as Bourne Co., has claimed ownership of rights in certain musical compositions.
According to the court filing, Bourne has claimed a right to terminate Warner’s hold on the compositions under British law.
In the U.S., copyright law allows authors or their heirs to terminate a copyright grant after 35 years after first publishing. There’s been increasing awareness of termination rights, but this latest lawsuit appears to address in an American court for the first time the United Kingdom Copyright Act of 1911, which provides that copyrighted works granted to a third party automatically revert to an author’s heirs 25 years after death.
Van Heusen died in 1990 — and according to the summons, Bourne claimed the right to terminate Warner’s rights in 2015. That said, Bourne allegedly also put Warner on notice back in 1994, but Warner continued to exercise rights under a 1956 agreement. Lately, according to the summons, various performing rights organizations around the world have been told to stop providing payment to Warner for the compositions in question.
Warner Chappell complains in its lawsuit that Bourne has refused to produce documentation including work for hire agreements under which Van Heusen wrote the most valuable songs for motion picture studios.
The summons states, “In addition, even if the British reversionary termination rights were applicable to any of the songs — and it is not, in any event, applicable to any of the songs written on a work for hire basis, nor is it applicable to songs written and delivered after 1956 and subject to post-1956 agreements, which Bourne has failed to provide — such termination rights would only be applicable, on information and belief, to Britain and Canada and not to any of the other countries in which Bourne has caused the income from the songs… to be diverted and/or frozen, depriving Warner of, upon information and belief, hundreds of thousands of dollars, even without the addition of interest at 9% per annum since the date such payments were diverted and/or frozen.”
Warner Chappell seeks a declaration that the 1956 agreement has not been validly terminated and that its continued subpublishing remains in full force and effect. Damages are asserted as at least $500,000.
Donald Zakarin at Pryor Cashman is representing Warner Chappell.
The attorney previously appeared for Sony/ATV Music Publishing when Paul McCartney sued to confirm that Beatles songs had been terminated pursuant to the termination provisions of U.S. copyright law. Before that case settled, Zakarin argued that a U.K. court should determine relevant issues of U.K. contract law.
Bourne Co. hasn’t responded yet to a request for comment.
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