January 1, 2013 is a date that has long been circled on music industry calendars. It will mark the 35th anniversary of the 1978 effective date of the Copyright Act of 1976, and is the day authors and artists can be begin to take advantage of the Act’s liberalized copyright transfer termination provisions. (Paul Goldstein’s legal thriller, Havana Requiem, recently reviewed here, is centered around a separate provision for terminating transfers that took place before 1978.) The termination provision—intended to “safeguard[ ] authors against unremunerative transfers” and address “the unequal bargaining position of authors, resulting in part from the impossibility of determining a work’s value until it has been exploited”—allows authors to “clawback” copyrights they may have improvidently assigned to publishers or recording companies after 35 years, upon giving of two years’ written notice. The biggest battle that lies just ahead will be over the attempts of recording artists such as Billy Joel and Bruce Springsteen to regain control of copyrights in classic 1978 sound recordings like “52nd Street” and “Darkness of the Edge of Town.” In the meantime, Victor Willis, the bare-chested lead singer of the 1970s camp act the Village People, and the lyricist for “YMCA,” “In the Navy,” and many of the group’s other songs, is out front with his attempt to regain his copyrights in the compositions, and he has won an early victory that may have ominous implications for the recording industry.
Willis provided the required two-year termination notices on January 1, 2011. (Unlike many composers of earlier years who have assigned their copyrights outright for a pittance, Willis’s original deal was not bad—he apparently had a 12-20% royalty interest in all exploitation of the songs.) The publishers sued shortly thereafter to have the termination declared invalid because, they argued, (1) Willis was one of only three joint authors who assigned their rights, and the statute requires that “in the case of a grant executed by two or more authors of a joint work, termination of the grant may be effected by a majority of the authors who executed it,” and (2) Willis, as a member of a manufactured group, was simply an employee and his songs were “works made for hire,” which are excluded from the termination provisions. (Those with long memories will recall the mini-scandal that erupted back in 2000 when industry lobbyists succeeded in enacting into law a provision, later repealed, that specified that recordings were works made for hire.) These are undoubtedly the types of arguments the recording industry will be asserting in its effort to hang on to its cash cows. Willis’s publishers, for some reason, withdrew the “work made for hire” argument, but in an opinion that carefully parses the language of the statute, a federal court in California has rejected the “majority of authors” argument, concluding that the provision by its terms only applies where multiple co-authors have signed a single “grant,” whereas Willis was the only party to the document that assigned his rights.
With that background, your enjoyment of wedding and prom season should be greatly enriched. A refresher on the steps is here.