The first shot is a direct hit. And possibly to the heart.
Victor Willis, one of the original Village People, prevailed this week in copyright case brought under Section 203 of the Copyright Act. (Scorpio Music SA et al. v. Willis, case number 3:11-cv-01557.)
That’s the section that – where certain stringent conditions are met – the grantor of a copyright may reclaim ownership of it “at any time during a period of five years beginning at the end of thirty-five years from the date of execution of the grant; or, if the grant covers the right of publication of the work, the period begins at the end of thirty-five years from the date of publication of the work under the grant or at the end of forty years from the date of execution of the grant, whichever term ends earlier.” 17 U.S.C. Section 203(a)(3).
Distilled to its essence, Section 203 allows “authors” (and in this case a musician) – after jumping through rigorous hoops that are easy to miss – to regain control over their work beginning in 2013 (as measured by 35 years from the date this section of the 1976 Copyright Act went into effect).
While this case was brought against a couple of music publishers, this is precisely the result that many record labels have feared: that a musician could recover the copyright interest in his / her / their hit songs. In this instance, that means the Willis’ rights to “YMCA,” “In the Navy” and 31 other songs by the Village People go back to him. Yikes. Not because of what this means to the labels, but what it means to me! Now these songs will be in my head all day! Ugggg. I blame U.S. District Judge Barry T. Moskowitz for this. Like Glenn Close in the famous bathtub scene – these bloody songs just won’t die!
And of course, an appeal is certain. So don’t pop the champagne just yet, Mr. Willis.
For its part, the opposing parties argued that because Willis was only one of the authors on the works could not regain his copyright interest without the involvement of his former band mates. Judge Moskowitz disagreed (“. . .in the Navy!”). He said Section 203 was drafted with the intent of letting each author regain control of his/her share of the rights (“. . . down at the Y-M-C-A”), and that in this instance, Willis had granted his copyright interest separately from the other band members, thus allowing him to “unilaterally terminate his grants” even if they haven’t.
This fight is a long way from over. Both with respect to Willis and, more importantly, the bigger fight between the labels and artists seeking to push the “35 year rule” that is due to arrive any minute now. Labels have pretty well indicated that they will take the position that the works were “works for hire” under Section 201(b) of the Act. Uhhh . . . (“. . .in the Navy!”). Really? You know, Prometheus would have had it easier if the gods had told him to push that boulder down hill. . . . At the YMCA..
This was the publisher’s initial response too, but it dropped it when Willis produced evidence that the songs had not been registered as such back in days of disco.
So, as we wait for the next (white) shoe to drop, we’ll just have to rip off our shirts, put on a leather vest, some chains and sing . . . In the Navy!!
Jonathan Pink is an intellectual property attorney in Los Angeles and Orange County California. He can be reached at firstname.lastname@example.org.