Victor Willis is a songwriter and original member of the Village People. He wore the police and naval officer costumes. His writing credits include “Y.M.C.A.” Like most then and many now, he transferred his copyrights to others.
Village People songs are still valuable. Spotify shows 13 million plays of “Y.M.C.A.” by Village People alone. The Copyright Act allows creators to cash in on lasting success by getting their rights ownership back after a minimum of 35 years. Willis sent copyright termination notices in 2011 to do just that.
The idea behind the right to terminate copyright grants was partly to fix the old copyright act’s failure. There was a “renewal term” that was supposed to give copyright ownership back to the creators. After business people got to exploit the works for a first term, the creators were to get their chance in the renewal term. It didn’t work that way. Publishers, record labels, managers and others in the music industry got the creators to sign away their renewal term rights most of the time.
When the current law was written, the termination procedure was supposed to be a slam dunk for creators. So what happened when Willis sent his termination notices as required by the law? He got sued.
Trying to recreate what happened 35 years ago, there are going to be missing pieces. Legitimate questions come up about who wrote what and who played what. Memories and resumes get embellished. In this case, there were questions about what percentage of songs Willis owned and what percentage belonged to co-authors.
But the people whose rights were being terminated sued Willis and claimed he was entitled to nothing. That was only the beginning.
After defeating the argument he could not unilaterally terminate his copyright grants despite the fact the law says he can, he had to win a series of summary judgment motions saying the statute of limitations killed his rights or he just waited too long. He had to win a jury trial on most of the songs earlier this year.
The Copyright Act allows for the “prevailing party” to be awarded legal fees. Fees are not automatic. It’s up to the Court. Two days ago, Judge Moskowitz who is the chief federal judge in San Diego, ordered the parties that fought the Willis terminations to pay him every penny he requested for four years of litigation, more than half a million dollars. The order is careful to say that the parties resisting the terminations did not act frivolously, with an improper motive, or make unreasonable factual or legal arguments “on the whole.”
Judge Moskowitz’ explanation of a key factor favoring an award of legal fees to Willis comes straight out of congressional hearings almost forty years ago when the current law was on the table. They say the termination section was designed 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.”
The people who must pay the legal fees may appeal or try to work out a deal with Willis to take less. It would hardly be surprising if the fight goes until there are no legal options left. Yet it seems clear that if termination rights under the current law are to succeed where the old renewal term failed, creators must be able to enforce their rights without getting more than half a million dollars of legal help to do it.