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Jan 28, 2017

Copyright Ownership (That’s What McCartney Wants)

It seems like just yesterday, all of Sony’s troubles seemed so far away. That was until legendary musician, Paul McCartney, filed a federal lawsuit last week against Sony/ATV Music Publishing LLC (“Sony”), seeking a declaratory judgment that he will not be in breach of contract next year when he begins reclaiming U.S. copyright ownership interests in various songs he authored and co-authored for The Beatles between 1962 and 1970.

The case stems from Section 304(c) of the Copyright Act of 1976, which created a non-waiveable claw-back right for authors to reclaim their ownership interests in any works assigned by them prior to January 1, 1978. Under that section, an author may reclaim their copyright ownership interest by serving a termination notice on the rightsholder between 56 and 61 years after the copyright registered. For the songs that McCartney wrote for The Beatles’ first studio album in 1962, and which Sony currently owns (after purchasing the copyrights from Michael Jackson’s estate last year for $750 million), that means 2018 is the first year McCartney can begin clawing-back his ownership interests.

This seemingly odd claw-back right is the result of changes to the Copyright Act in 1976 that enlarged the duration of copyright protection, which Congress recognized would create a corresponding windfall to all then-current copyright assignees prior to the Act’s effective date on Jan. 1, 1978. In the 1960s and early 1970s, when McCartney wrote songs for The Beatles, his U.S. copyright interests fell under the Copyright Act of 1909. The 1909 Act only provided protection to the rightsholder for an initial period of 28 years, but also granted a renewal option for another 28 years, for a total of 56 years of protection. The 1909 Act was repealed in 1976 and replaced with the current Copyright Act of 1976, which changed the duration of copyright protection for all copyrights that were valid as of Jan, 1, 1978, to the life of the author (or last surviving author) plus 50 years. The Sonny Bono Copyright Extension Act of 1998 increased that duration by another 20 years.

This means that if the court doesn’t let him down, beginning in 2018 and continuing up to 2031 (but most likely concluding in 2026, assuming he doesn’t take a golden slumber on his termination rights), McCartney will slowly regain his U.S. copyright ownership interests in all of the songs he authored and co-authored for The Beatles between 1962 and 1970. That would allow McCartney and his successors to reap more of the benefits (and profits) from those songs for the rest of his life and 70 years thereafter.

McCartney is not the first artist or successor to attempt to claw-back a copyright interest under Section 304(c). In Siegel v. Warner Bros., 542 F. Supp. 2d 1098, 1145 (C.D. Cal. 2008), the heirs of one of the co-creators of the comic-book series Superman successfully invoked the statute to reclaim their half-interest in the copyright to the Superman character. In Marvel v. Kirby, 777 F. Supp. 2d 720 (S.D.N.Y. 2011), on the other hand, Marvel successfully sought a declaratory judgment against the heirs of a freelance artist who helped create many of the comic-book publisher’s most famous characters, including those in The Incredible Hulk and X-Men, by prevailing on a work-for-hire presumption. Neither Seigel nor Kirby questioned section 304(c)’s meaning, but instead attacked the existence of the artist’s rights to begin with, which does not appear to be an issue with the songs McCartney wrote for The Beatles (at least, not yet).

While it seems that McCartney’s ability to get back his ownership interests in The Beatles songs from Sony under Section 304(c) is clear, his complaint may actually be premature, as his termination rights only start arising next year and Sony has not yet declared that he can’t do that. As such, Sony may argue to the court that there is no current justiciable controversy—a constitutional requirement before a court may hear a lawsuit. Even if they do, however, in the end, McCartney will likely get by with a little help from the Copyright Act.

As seen in Forbes. 

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