Golden oldie songwriters were whistling a happy tune Tuesday after a U.S. District Court judge in New York ruled last week that performance royalties collected from so-called “derivative works” on songs written before 1976 would no longer be paid to publishers, but to the original tunesmiths or their heirs.
In a groundbreaking test case, Judge Richard Owen ruled Dec. 31 that Bourne Music Publishing Co. had no claim to composer/lyricist Harry Woods’ 1926 hit song “When the Red, Red Robin Comes Bob-Bob-Bobbing Along” once its 56-year copyright life expired and its rights returned to the original writer’s family.
Attorneys for Bourne claimed that the version the publishers created, with the help of Irving Berlin, was a “derivative work” of the original, and therefore protected with a copyright of its own. The definition of a derivative work has been hotly debated in music circles, with interpretations ranging from a musical arrangement to a modified lyric.
Owen rejected the Bourne argument, saying a deep, specific change was necessary for a work to be considered legally derivative. “In order therefore to qualify as a musically ‘derivative work,’ there must be present more than mere cocktail pianist variations of the piece that are standard fare in the music trade by any competent musician,” Owen wrote in his decision. “There must be such things as unusual vocal treatment, additional lyrics of consequence, unusual altered harmonies, novel sequential uses of themes — something of substance added making the piece to some extent a new work with the old song embedded in it but from which the new has developed.”
Bourne’s attorney Robert Osterberg said he would appeal the ruling, complaining that the judge’s criteria for “derivative” status were too stringent. “That’s not a copyright test. Those are patent standards,” he said. “For copyrights, it’s not nearly as stringent. There is a very low threshold that is easily met.”
The decision had immediate ramifications for songwriters and their heirs who have had several million dollars held in escrow by the American Society of Composers, Authors & Publishers, which monitors, collects and distribs royalties based on public performances to its members.
ASCAP officials could not be reached for comment, but sources said it was unlikely any payments would be made until the case went to appeal.
Even though this case only specifically involved the rights to “Red Red Robin ,” ASCAP felt it necessary to hold on to the royalty funds of other songs that might be affected until the case was settled.
The decision only applies to works written before the 1976 U.S. copyright revision.