10:32am PT by Eriq Gardner
Musicians Attempt Class Actions Against UMG, Sony to Reclaim Rights to Recordings
For the past decade, a number of prominent musicians including Tom Petty and Bob Dylan have quietly attempted to reclaim rights to songs by serving notices of termination to publishers and record labels. Often, like in the case of Prince, these notices become invitations to renegotiate deals for more favorable royalty arrangements. But according to lawsuits filed Tuesday in New York federal court, in the face of hundreds of termination notices, UMG Recordings and Sony Music have "routinely and systematically refused to honor them."
The named plaintiffs in the UMG case are John Waite, a solo artist and former lead singer of the 1970s group The Babys, and Joe Ely, who has recorded 18 solo albums and also was a performer on works by The Clash and Rosie Flores. In the Sony case, David Johansen of The New York Dolls, John Lyon (known as Southside Johnny) and Paul Collins of The Beat are hoping to lead the charge.
They are looking towards the Copyright Act of 1976, which extended the term but also gave artists who bargained away rights during the early part of their careers a second bite at the apple by allowing them to terminate copyright grants during the latter portion of the copyright term.
There are important exceptions to who has the right to terminate. Among them is anyone who created "works made for hire," essentially a work prepared by an employee within the scope of his or her employment. In such a situation, it's the employer seen as the statutory author of the work.
The newest lawsuits state that UMG and Sony are regularly taking the position in response to termination notices that recordings are "works made for hire" because of contractual language in recording agreements.
"As a result of UMG’s policy, UMG has refused to acknowledge that any recording artist has the right to take over control of the sound recordings, or enter into an agreement with a different label for the exploitation of recordings, after the effective date of termination," states the complaint. "In many instances, UMG has continued to exploit the recordings after the effective date, thereby engaging in willful copyright infringement of the United States copyright in those recordings."
The newest lawsuits, the first attempts at an action that represents a class of recording artists, aim to change the situation.
Not only are UMG and Sony being sued for infringing the copyrights of many of the songs in their respective catalogs, but the plaintiffs seek declaratory relief that sound recordings can't ever be considered "works made for hire" under the law, that release of sound recordings in album format doesn't constitute a "contribution of a collective work" or "compilation" (other exceptions to termination), that foreign choice of law provisions in contracts don't have any effect on U.S. copyright law with respect to the termination powers, that sound recordings aren't "commissioned works," and that recording artists aren't barred from terminating based on the use of loan-out companies.
Additionally, the lawsuits address issues of timeliness for determining the statute of limitations and whether the exercise of termination rights amounts to a breach of contract.
The plaintiffs in both cases, represented by attorneys at Blank Rome, also demand monetary damages and injunctive relief. Here is the full complaint.