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New lawsuits seek to force labels to return old recordings to artists

By | Published on Wednesday 6 February 2019


Two potentially explosive lawsuits have been filed in the US targeting Sony Music and Universal Music. Both are set to test the reach of the so called ‘termination’ or ‘reversion’ right under American copyright law.

Artists including Paul Collins, John Waite and David Johansen of the New York Dolls accuse the two majors of infringing their rights by refusing to accept termination notices that would allow them to reclaim their master rights in old recordings, in the US at least.

The termination right says that ‘authors’ who assign their copyrights to another entity have a one-time opportunity to terminate that assignment and reclaim their rights after 35 years. This particular termination right comes from a piece of 1970s copyright law Stateside, so only really kicked in earlier this decade.

On the songs side of the business songwriter’s reclaiming their US rights in this way has become routine. There was some initial debate over a few technicalities, and the Duran Duran case here in the UK testing the termination rights of British artists is ongoing. Still, American writers reclaiming their copyrights after 35 years is not generally controversial.

On the recordings side, however, many corporate rights owners have resisted efforts by artists to reclaim assigned rights. This is based on an argument over the nature of record contracts and the status of the artist in copyright terms. Many labels insist that record deals are so called ‘work for hire’ agreements that basically make artists employees, so that the default owner of any copyrights they create is their employer, ie the label.

If you follow that logic, then the ‘author’ of the sound recordings is actually the label not the artist. The artists never owned any copyright and so never assigned any copyright. So there is no assignment to terminate or rights to revert.

Needless to say, plenty of artists, managers and lawyers do not concur. They argue that record deals are not ‘work for hire’ arrangements, even if the contract itself claims that status. And therefore termination rights should definitely apply.

This difference of opinion has been doing the rounds for some time. It is thought that Prince managed to reclaim the American rights in many of his most famous albums from Warner Music by threatening to exercise his termination rights. Meanwhile, the multi-layered legal dispute between Universal owner Vivendi and the creators of ‘This Is Spinal Tap’ includes a termination right element in relation to the cult movie’s soundtrack.

These new class actions could result in some high profile judicial scrutiny of the arguments on both sides. The two lawsuits set out various arguments as to why the plaintiffs’ record contracts are not ‘work for hire’ agreements and therefore Sony and Universal have been infringing those artists’ rights. The lawsuits add that the two majors have “effectively destroyed the very saleability of the post-termination rights in the recordings that the Copyright Act expressly guarantees”.

One of the LA attorneys working on the case – Evan S Cohen – yesterday commented on the litigation. “Our copyright law provides recording artists and songwriters with a valuable, once in a lifetime chance to terminate old deals and regain their creative works after 35 years”, he noted.

“This ‘second chance’ has always been a part of our copyright law”, he went on. “Sony and Universal have refused to acknowledge the validity of any of the [termination] notices and have completely disregarded the artists’ ownership rights by continuing to exploit those recordings and infringing upon our clients’ copyrights”.

“This behaviour must stop”, he concluded. “The legal issues in these class action suits have never been decided by a court and are of paramount importance to the music industry”.

If a precedent was set across the board that American artists could reclaim the US rights in recordings after 35 years, that could see labels losing control of significant portions of still valuable catalogue, or at least being forced to renegotiate old record contracts that were generally much less favourable to artists than even mediocre new deals would be today.

All of which means we await Sony and Universal’s response with considerable interest.