Copyright termination rights are an old idea designed to benefit the creators of works who gave their copyrights to the business side of a project in the form of a publisher, record company, movie producer, etc. The idea was that after a business has gotten a good long ride to exploit and profit from the rights, creators or their heirs should get them back. The first sentence says “designed” because the old copyright law had a renewal term which was supposed to be when creators got their rights back, and it didn’t work. Standard contracts throughout the time the old law was in effect had artists give up all copyrights, including the renewal term.
When most of our copyright law was overhauled in the 1970’s, specific copyright termination sections were built in so that artists would finally be able to get back rights when the time came, no matter what. The law’s determination to get it done this time is seen in the fact that artists could terminate rights “notwithstanding any agreement to the contrary” 17 U.S.C. §203(a)(5).
Though the new copyright law isn’t exactly new, what is new is that after a 35 year waiting period copyright terminations for works created since January 1, 1978 are just underway. To send the termination notices required by the law and Copyright Office regulations, artists or their heirs have to track down the current owners, do research to locate documents, and try to recreate what happened more than 30 years ago. This can be complex and expensive all by itself.
But notices are going out and peaceful rights turnovers are happening. Some terminations are accepted and then former owners and the artists work out brand new deals. The law has provisions on how this process must work. Although notices must be filed with the Copyright Office, what happens from there is usually private.
It all becomes public when businesses say “Never!” and file lawsuits against the creators. That’s what happened to Victor Willis, original lead singer of the iconic Village People. He didn’t just sing and do choreography in costume. He was an author or co-author of such hits as “YMCA,” “In the Navy,” and “Go West.” And he wanted his copyrights back in accordance with the law.
The music publishers sued him and made many technical and some surprising arguments against the rights return. They said that Willis’s termination notices were defective under the law because they had to be signed by a majority of the creators involved in each tune. The arguments were complex and many issues were briefed. But Chief Judge Barry Moskowitz of the federal court in San Diego basically boiled them down with one simple fact—Mr. Willis was the only person to sign the agreements giving up his rights. The court concluded he was the only person who had to sign the notice terminating those agreements.
The publishers argued that Mr. Willis had no termination rights because his work was all “work made for hire.” This is a very difficult issue in the music business that will eventually have to be resolved once and for all. But not in this lawsuit. The publishers withdrew the argument.
Perhaps the most surprising argument was that if the court agreed Mr. Willis got back his copyrights, he was limited to getting an interest at the same percentage as his royalties under the agreements being terminated. The court had no trouble rejecting that one. Judge Moskowitz ruled that Mr. Willis gets the copyright interest back that he gave up 30+ years ago, and his compensation under the agreements being terminated had nothing to do with what that interest was. Not cited in the opinion, this looks like one of those “notwithstanding any agreement to the contrary” moments.
Finally, the chief judge kept an eye on the idea behind the termination rights. He recognized “The purpose of the Act was 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.” H.R. Rep. No. 94-1476, at 124 (1976).
This decision vindicated the rights of one artist. Will copyright terminations be fought in the courts more times than not if valuable rights are at stake? Will artists again be in an “unequal bargaining position” because they can’t afford those fights? Will businesses focus instead on accepting terminations and working out new deals? Time will tell.