In a long-anticipated court ruling on May 9th, a California judge upheld former Village People lead singer Victor Willis’s right to reclaim ownership of hit songs such as “YMCA” and “In the Navy.” Early last year, Willis invoked an amendment of United States copyright law which deals with inalienable “termination rights” with respect to recordings created post-1978.
Unique to the US, termination rights allow an author to reclaim ownership to their creation from a publisher after 35 years, “notwithstanding any agreement to the contrary.” This means that starting in 2013, recording artists and songwriters can begin to regain control over work they signed away rights to at the start of their careers. US legislators instituted termination rights in an attempt to help authors who may have been locked into unfavourable and exploitative deals at the beginning of their career.
In the case at hand, the song publishing companies Scorpio Music and Can’t Stop Productions tried to prevent Willis from invoking his termination rights with a two-pronged attack. The companies claimed that the songs in contention were created over the course of his employment. Following this logic, the songs could then be classified as “works for hire,” which are an exception to termination rights. The publishers’ legal team eventually withdrew this argument. Copyright experts explain that this line of reasoning is inherently weak, as recording artists from the 70s and 80s are likely to be seen by courts as independent contractors rather than employees. The companies also contended that as a co-author of the songs, Willis had “no right, title or interest in the copyright” and thus lacked legal standing to invoke termination rights. On this second point, the court ruled that Willis had sufficient standing.
The case at hand is particularly important for several reasons. To begin with, it is the first case known of dealing with termination rights with respect to music publishing. This case will certainly not be the last, as famed performers such as Tom Petty, Bryan Adams, Tom Waits and Loretta Lynn have already filed to regain control over some of their compositions once 35 years have elapsed since their creation. Secondly, the case sets precedent that termination rights will be upheld even if an author of a work was not the sole contributor to the creation.
So what does this ruling mean for the musical landscape? For one, Mr. Willis’s case should have record companies shaking in their boots. As it has been well documented, the music industry is in turmoil. Financial analysts have reported that the music business is worth less than half of its value ten years ago. One way that recording companies have been able to stay afloat has been through the use of back-catalogues to generate profits through licensing. Without control over important back-catalogue works such as “Back in Black” by AC/DC (currently owned by Warner Music Group), “The Wall” by Pink Floyd (Sony and EMI) and “Thriller” by Michael Jackson (Sony) it is likely that record companies will suffer even greater financial losses.
Record companies should also be aware that it is unlikely that they will garner significant sympathy from judges should they choose to litigate against artists. While they have indeed invested money, time and resources in developing the value of copyrighted material, record companies have been notoriously exploiting artists for decades and continue to do so. Thus, the concerns 1970s litigators had about under-compensation of artists for creative work still exist. It is unlikely that record companies will be successful in their legal battles while termination rights still have a purpose. Moreover, the termination rights issue has been in the companies’ sights since 1978. The fact that record labels, both major and independent, have failed to come to a unified position on this issue signifies companies’ unwillingness to simply re-negotiate higher royalties with artists in order retain song rights. Lack of negotiation and litigation against artists will likely attract negative publicity and add to the public’s perception of record labels as “out of touch” villains.
While the Willis case is a win in the artists’ corner, many questions remain unanswered: can foreign groups such as Led Zeppelin exercise termination rights on their American recordings even if their original contract was signed in the another country? Will the “works for hire” argument be successful once it is formally adjudicated? What will the court decide is the extent of co-authors’ interests in various compositions?
Elena Iosef is a JD candidate at Osgoode Hall Law School.