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Can’t stop the music rights reclamation

Willis suit draws attention in the music legal community

Sometime soon, when the Village People anthem “YMCA” is played during an inning break in Yankee Stadium, Victor Willis, the lead singer of the ’70s-era disco group, plans to be there. His lawyer, Brian Caplan, plans to take him.

There’s a good reason for Willis to see the spectacle in person: He soon will be the beneficiary of a provision of copyright law that allows artists and songwriters to reclaim their works after 35 years, following a court victory in which a federal judge ruled that he could reobtain his share of “YMCA” and some 32 other songs he co-wrote.

“I am just looking forward to having control of it,” Willis said.

His suit drew attention in the music legal community because it is one of the first to come to court over a provision of the Copyright Act that allows writers and artists to reclaim their works 35 years after handing over a grant to their copyright. The Section 203(a) provision set the effective date on or after Jan. 1, 1978, meaning that the first works can go back to authors starting in 2013. When Congress inserted the provision in the Copyright Act in 1976, the intent was to give creators another shot at controlling their works given that they may not have much leverage earlier in their careers.

That was the case with Willis. “I just signed whatever they put in front of me,” he said of his mindset back then.

The assumption is that this all could have a huge impact on the music business, as we’re still playing, performing and, with mobile services, ringing the hits of 35 years ago. According to the U.S. Copyright Office, 285 notices of termination have been filed under Section 203, most of them over music compositions or recordings. One notice can terminate rights to dozens of songs.

But rights termination isn’t so simple. It’s not like a tenant giving 30-day notice to a landlord, but a rather complex process fraught with legal entanglements, and it’s far from clear that the courts will provide much clarity in the years ahead.

In Willis’ case, the publishers argued that he couldn’t reclaim ownership because the other authors hadn’t sought such rights termination as well. The court rejected that argument. Willis had licensed the works to Scorpio Music and Can’t Stop Prods., entitling him to royalties of 12% to 20%, depending on the song. The next step in his case will be discerning how much of an ownership he will have when he reclaims his copyright — something his lawyers say is between one third to 50%. In the case of “YMCA,” for example, he is one of three authors listed on the copyright registration, but one of his attorneys argued that one of those listed was not actually an author, something that would raise Willis’ stake to 50%.

While Willis’ case generated a lot of publicity, the implications for the industry may be much greater when it comes to recording artists, as opposed to songwriters, terminating their grants of copyrights.

Publishers have been grappling with rights terminations for years under another provision of the Copyright Act, but it wasn’t until 1972 that sound recordings were protected, meaning that Section 203 is all the more relevant.

There’s an expectation that record labels will challenge terminations by contending that the master recordings were made “for hire,” or at their behest. That’s a key point because works made under those circumstances — not so common for songwriters, but perhaps much more so for recording artists — cannot be terminated.

Willis says he’s gotten “emails from all over the world” congratulating him, but he’s also pleased that it has alerted others that this provision even existed. After all, can it really be a surprise that the arcana of copyright was hardly on the minds of many in the hustle of the day?

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