A small music company, Rock River, was given back its day in court to claim Universal Music Group intentionally interfered with its attempt to market remixes of 1960’s recordings in Jamaica by Bob Marley and the Wailers. Rock River’s perseverance may not ultimately result in success, but the decision in Rock River Commc’n v. Universal Music Group, Nos. 11-57168 & 12-55180 (9th Cir. Sept. 18 2013) is a lesson for anyone involved with rights in pre-1972 recordings: if you don’t have a slam-dunk chain of title, tread lightly.
Rock River was ready to distribute its new album of 12 remixed Marley recordings when UMG allegedly shut down the project four ways (iTunes, movie soundtrack, US physical copy distribution, and international distribution negotiations). Rock River sued and as the parties were about to try its intentional interference with prospective economic advantage claim, UMG moved to limit evidence arguing Rock River’s claim of rights in the 12 recordings had to be proven before there could be an interference. If it lacked proof, there was no prospective advantage to interfere with because the album could not be lawfully marketed without a valid license of rights in the recordings.
The 9th Circuit parsed the elements of intentional interference and found no requirement that plaintiffs establish the validity of their prospective opportunities in their case in chief. UMG got the Court’s attention, however, with its claim of acquiring exclusive rights from JAD Records to over 200 Marley recordings.
Discovery showed that UMG never got chain of title proof from JAD despite many requests. Worse, UMG knew its Canadian affiliate had two licensing agreements with the same party that granted licenses to Rock River, not JAD. The Canadian licenses covered recordings in which JAD claimed exclusive rights. In a final irony, Rock River had copyright registrations for its new remixes, but neither JAD nor UMG ever sought copyright protection of tracks recorded over many years before 1972.
That year is important because federal protection of records, “sound recordings,” began for the first time on Feb. 15, 1972. California is one of the states that filled the vacuum in legal protection for recordings before then with a law that protects “an exclusive ownership” interest in sound recordings until February 15, 2047. Cal. Civ. Code § 980 (a) (2).
Rights to pre-federal protection recordings are being tested in litigation by former Turtles Mark Volman and Howard Kaylan, known later as Flo & Eddie and famous for “Happy Together” and a rewarding stretch with Frank Zappa. UMG knows this territory. It famously litigated against online music streaming service Grooveshark, and won the argument that federal copyright law does not grant safe harbor protection to stream pre-1972 recordings and not pay rights holders.
There is still a robust business in physical copies of older recordings. Rights claims often are based on testimony, not just documents. Several states besides California have laws protecting pre-1972 recordings, and the laws have many differences. The landscape is complicated. So if you own rights in recordings made over 40 years ago, you can’t learn too much about who else has claims and what they’re based on. When in doubt, make deals not lawsuits.