Dee, my spouse, and I started taking Argentine Tango classes together last fall. Tango is a complicated dance that takes years to learn, so it can be frustrating at times. Despite the frustration, we very much enjoy the classes, practicas (informal dances) and social dances we attend. One of the things I enjoy most about tango is the music! It’s so much fun! Tango music has a wonderful driving rhythm and is fabulously melodramatic. A song only lasts a couple of minutes, though, so it’s enjoyable without becoming overwrought. I’ve often thought it would be great fun to play piano in a tango band. In the process of looking online for tango music sources, I discovered that tango music scores are available for download for free from several websites. I was amazed. Can I download these scores without becoming a copyright infringer? Maybe.
The Ninth Circuit Court of Appeals ordered Google to take the inflammatory anti-Islamic film “Innocence of Muslims” down from You Tube and all platforms it controls and to take reasonable steps to prevent additional uploads. The Ninth Circuit’s order results from actress Cindy Lee Garcia’s copyright infringement claim against Google. Garcia prevailed in her appeal of the district court’s denial of her preliminary injunction motion to order Google to remove the film from You Tube. The Ninth Circuit ruled that Garcia was likely to succeed on the merits of her copyright claim against Google, that Google’s ongoing infringement caused Garcia irreparable harm and that the balance of the equities and the public interest tipped in Garcia’s favor.
This case centers on rights to the musical composition “Spank.” Ronald Louis Smith, Sr. wrote Spank in the late 1970s. Smith’s estate later sent a cease and desist letter to one of the music publishers and filed copyright grant termination notices. Smith’s estate followed up by suing the music publishers and others in federal court. The Eleventh Circuit faced this question: Can the author of a musical composition rely on the registration filed by the publisher for standing to sue under the Copyright Act, when the author assigned his rights in the sound recording to a different publisher in exchange for royalties, but that agreement is silent regarding the ownership of the musical composition rights? The Eleventh Circuit ruled that, yes, the author does have standing to sue under such circumstances and reversed the district court’s ruling.
When Victor Willis served Scorpio Music (Black Scorpio) and Can’t Stop Productions with a copyright grant termination notice for lyrics he wrote as the original lead singer of the Village People, Scorpio and Can’t Stop sued to challenge the validity of the termination notice. My post Village People Cop Morphs into Copyright Grant Terminator describes Scorpio’s and Can’t Stop’s first three unsuccessful attempts to invalidate Willis’ copyright grant termination notice. Scorpio and Can’t Stop recently met with a fourth rejection by the district court in their attempt to invalidate Willis’ copyright grant termination notice.
Watch out, but don’t pout or cry, because the grantee of the copyright to “Santa Claus Is Comin’ To Town” owns the copyright until it expires in 2029. This case is full of action, involving an ineffective termination notice, two agreements transferring copyrights, termination notices filed under §§304(c), 304(d) and 203 of the Copyright Act of 1976, and the application of both the Copyright Act of 1976 and the Copyright Act of 1909, the precursor to the 1976 Act.
John Frederick Coots and Haven Gillespie co-authored “Santa Claus Is Comin’ To Town” (the Song) in 1934, transferring their copyrights in the Song that year to Feist. In 2012, Coots’ heirs, Gloria Coots Baldwin, Patricia Bergdahl, and Christine Palmitessa, brought suit against grantee EMI Feist Catalog (EMI). The plaintiffs sought a declaratory judgment that their copyright grant termination notices were valid and enforceable, terminating EMI’s interest and returning the rights to themselves. This case demonstrates both the complicated process of terminating a copyright grant and the complicated analysis involved in determining ownership in copyright grant termination dispute cases. This matter was decided in the U.S. District Court, Southern District of New York.
In a case of first impression in this circuit, the Ninth Circuit Court of Appeals differentiated between the two kinds of copyright infringement claims: ordinary copyright infringement (copying, preparing derivative works, distributing, publicly performing or publicly displaying without the owner’s permission) and copyright infringement in which the dispute is about ownership. Copyright infringement claims involve establishing 1) that the plaintiff is the owner of a valid copyright and 2) that the defendant copied the original elements of the plaintiff’s work. Seven Arts Filmed Entertainment sought to establish itself as the copyright owner of the films Rules of Engagement, An American Rhapsody, and Who is Cletis Tout? and sued Paramount Pictures for allegedly distributing the films without a license. Paramount argued that Seven Arts’ infringement claims were barred by the statute of limitations. The Ninth Circuit viewed this case as an ownership dispute.
Section 507(b) of the Copyright Act of 1976 requires civil copyright actions to be “commenced within three years after the claim accrued.” Most copyright infringement lawsuits focus on whether the defendant copied the plaintiff’s work. When copying is the issue, infringement claims for copying that occurs more than three years before the lawsuit was filed are barred, i.e., prohibited, by the statute of limitations. But the defendant can still be held liable for copying that occurs between the three year statute of limitations date and the present. Each new infringing act creates a new claim for infringement. (However, damages are determined per work infringed, not by the number of infringing acts.) The issue for the Ninth Circuit to decide was “whether a claim for copyright infringement in which ownership is the disputed issue is time-barred if a freestanding ownership claim would be barred.” (Opinion pdf page 9). Could Paramount be held liable for continuing infringing acts if the statute of limitations prevented Seven Arts from establishing copyright ownership ?
September 13, 2013, was the effective date for Victor Willis’ termination of copyrights granted to Scorpio Music (Black Scorpio) S.A. and Can’t Stop Productions, Inc. for Willis’ hit songs YMCA, I’m a Cruiser, Hot Cop, Ups and Downs, My Roomate and The Women. Willis was the original lead singer for the group, the Village People. He appeared onstage with the Village People dressed as either a cop or a naval officer.
These songs and others with lyrics written by Willis were registered with the U.S. Copyright Office in the late 1970’s in Willis’ name and the names of his co-authors. Willis transferred his interest in the songs to Can’t Stop, the exclusive U.S. sub-publisher and administrator for Scorpio, a French corporation. After Willis notified Scorpio and Can’t Stop in early 2011 that he was terminating the transfer of his copyrights, Scorpio and Can’t Stop sued Willis, challenging the validity of the termination and seeking a declaratory judgment that Willis has no rights in the copyrights to the songs. The district court ruled in Willis’ favor on the three major motions filed by Plaintiffs Scorpio and Can’t Stop to date. Early in the litigation, Scorpio and Can’t Stop claimed that Willis created the lyrics under a work made for hire agreement, but later abandoned that claim.
Musician and composer Ray Charles signed several agreements in the 1950s regarding recording songs for Atlantic Records and composing songs for Progressive Music Publishing Co. In 1980, Charles purportedly renegotiated his agreement with Progressive’s successor-in-interest, receiving royalties and a cash payment. The rights that Charles transferred to Progressive are now owned by Warner/Chappell Music. Charles entered into an agreement with each of his twelve children in 2002. In exchange for an irrevocable trust funded with $500,000, each child agreed to waive any right to make a claim against Charles’ estate. When he died eighteen months later, Charles left all of his rights in this works to The Ray Charles Foundation, including the right to receive royalties.
Seven of Charles’s children served copyright termination notices in 2010, under 17 U.S.C. §304(c)(5) for transfers occurring before 1978 and §203 for transfers occurring in 1978 and later. The Foundation brought a federal declaratory judgment action against the seven children who filed termination notices (defendants), seeking to invalidate the termination notices. The U.S. District Court for the Central District of California granted the defendants’ motion to dismiss the Foundation’s declaratory judgment claim, ruling that the Foundation lacked standing to bring the declaratory judgment action.
I previously discussed the copyright termination of transfer provisions in my post, Termination of Transfer Provision Applies to All Authors, Not Just Musicians. 17 U.S.C. §203 provides for the termination of a copyright grant 35 years after the grant was made, if the grant was made after January 1, 1978. Section 304(c) creates a similar right of termination for copyrights that were registered before January 1, 1978. The law on copyright termination of transfers recognizes the unequal bargaining power between publishers and authors and is an attempt to allow authors and their families the opportunity to reclaim and benefit from the authors’ commercially successful works.
The effect of loan-out corporations on the implementation of the §203 grant termination provision adds a potentially fatal wrinkle to an author’s ability to successfully terminate a copyright grant. A loan-out corporation is corporation that is usually wholly owned by one person and is used to “loan-out” that person’s services to employers. Actresses, musicians and professional athletes often provide their services through loan-out corporations. Loan-out corporations generally limit the liability of the employee and provide tax benefits. The use of loan-out corporations dates back to the 1930’s.