Starting this year, musicians are able to reclaim much of their work from 25 years ago
At midnight on Sept. 13, something momentous will happen to the group Village People and one of the anthems that made them emblematic of the 1970s disco era, and a mainstay to this day of many a wedding reception: A chunk of the rights to the song Y.M.C.A. will pass from its publisher to one of its co-authors and lead singers, Victor Willis.
Dozens of other Village People works will also come into his grasp for the mere fact that a provision of the Copyright Act says so: Willis, now 61, is one of the highest-profile artists to activate the rather arcane Section 203, which allows authors to reclaim rights to their works after 35 years, with the clock starting at Jan. 1, 1978.
This year the rights to a host of the music from that era will pass from publishers and record companies to authors and artists. It includes some of the most iconic titles of the late 1970s, still earning returns in record label catalogs. The Eagles filed notices of termination to their albums “The Long Run,” effective on Sept. 25, 2014, and “Eagles Live,” effective Nov. 8, 2015. Rights are currently held by Electra Entertainment and Warner Music Group.
Eagles member Don Henley has noticed Geffen Records that he is reclaiming the recording of “Boys of Summer,” effective Oct. 26, 2019, while Devo, Huey Lewis and the News and Fleetwood Mac have filed notices for some of their works, according to records from the U.S. Copyright Office. One of the first to file a notice is Kris Kristofferson, who in 2008 filed notices of termination for “Risky Bizness” and “Spooky Lady’s Revenge” from Resaca Music Publishing Co.
The intent of Section 203 was to give authors and artists a second shot at reclaiming rights they assigned earlier in their careers, when they probably had little leverage against far bigger labels and publishers. But the provision, part of Congress’ historic rewrite of the Copyright Act in 1976, is far from simple. Willis’ reclaiming of Village People works survived a legal challenge last year from the publisher who held the rights, Scorpio Music, but the complicated nature of creative production could be setting the stage for a legal morass.
Lee Phillips, partner at Manatt, Phelps & Phillips, said that it is “too early to tell” if the provision is fulfilling Congress’ intent. Particularly when it comes to master recordings, the law leaves ambiguities. Among them is what exactly defines a “work for hire,” which is exempt from rights termination. Other issues include who can terminate and how that termination can be effective, as well as the proper dates to include in any notices. It is complicated given that groups, producers and background musicians may have all contributed to a work.
As much as artists have served notices on labels, the record companies have yet to challenge them in court proceedings, including over whether the work is “for hire,” but it is still early. “There are tons and tons of masters that don’t earn $100 a year,” says Phillips. “They may look at it and say, is it worth fighting for? But if they don’t fight it, is it setting a precedent?”
But the burden is on the artist to get the rights back. If they do not issue a notice within a window, they miss out.
Phillips’ colleague Eric Custer says there “will (not) be a single day where (labels) could lose rights to 25% of their master catalogs. Instead, it would be a drip, drip, drip, and year by year.”
The situation has set up a forensic-like analysis of contracts written more than a generation ago, some of which contain conflicting language. As Custer points out, some of the pacts from the late 1970s identify an artist as working “for hire,” but in another provision make clear that they are not employees of the label. Moreover, language spelling out that an artist is “for hire” doesn’t necessarily negate a termination right; courts will look at how the work was actually performed.
“I think the big battleground is whether these work-for-hire provisions are going to be valid in these recording contracts,” says Greg Gabriel of Kinsella, Weitzman, Iser, Kump & Aldisert. “That’s the million-dollar question that gives the labels extra leverage.” Scorpio Music originally claimed that Willis’ work was “for hire,” but dropped that claim, presumably out of the risk that it would set a precedent, Gabriel notes.
Sound recordings are not on the statutory list of nine categories of “commissioned” works that may qualify as works for hire, but there has been speculation that the labels would try to challenge terminations by claiming that an album falls into a category that does qualify, like a collective work or compilation. Even then, though, the artist would have had to sign an agreement that the work was “for hire.”
Also to be resolved is what happens with works written or produced in 1977 yet released in 1978. Do they fall under the provisions? And artists may have to weigh whether a legal challenge is worth it if what they are getting is a title that creates very little revenue.
Under another termination provision of the Copyright Act, Section 304, authors and artists have been noticing publishers for years, and the headaches they have to go through to reclaim rights seems to be directly proportional to it perceived value in the present day.
The most famous example is the termination notices filed by the heirs to the creators of Superman, Jerry Siegel and Joseph Shuster, who rather famously sold their rights to the Man of Steel for $130 in 1938 only to watch it evolve into a billion-dollar enterprise. DC Comics has put up a legal battle that has lasted nearly a decade, and has devolved into a DC suit against even their attorney, Marc Toberoff.
Says Bennett Bigman, partner at Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor: “As these cases develop and artists hear more, I think they will become more active in trying to take advantage of the law.”
According to the U.S. Copyright Office, the number of notices of termination that have been filed and recorded under Section 203 of the Copyright Act stands at 534, a significant jump from nearly a year ago when there were 285. One termination notice can cover dozens of recordings and compositions.
Eric Schwartz of Mitchell Silberberg & Knupp’s Washington office was friends with Barbara Ringer, the register of copyrights in 1976, who had a hand in crafting the legislation. He says that despite some of the uncertainties about the years ahead, the law is serving the purpose of giving artists a second bite at the apple — a chance to renegotiate existing contracts. Before then, they often just signed away their ownership for the entire life of the copyright, even for the renewal term.
“There’s not a lot of black and white in this area; there’s a lot of gray, both in terms of the legal issues and the business decisions that get made on an individual basis,” Schwartz says.
Willis’ case has evolved from whether he reclaimed his stake in Village People songs to how much of a stake he owns; Scorpio says it’s no more than 33%; he says it is 50%. A federal judge ruled that such questions remain to be resolved, making it all the more likely that the creative elements that led to Y.M.C.A. will laid out before the court.